Leading contact center player in Madagascar, France, the UK and South Africa.
ODiTY TECHNOLOGY COMPANY GENERAL CONDITIONS OF SALE
ARTICLE 1 – SCOPE OF APPLICATION
These General Conditions of Sale constitute, under I Article L. 441-1 of the French Commercial Code, the sole basis for commercial relations between the parties.
This legal information and the General Conditions of Use apply to the ODiTY Technology Company, which is the owner of the, www.areyounet.com, and www.liveintercept.com ainsi que des plateformes pp-www.cxplatform.fr, extranet.liveintercept.com et extranet.surveyminer.com (hereinafter, “ODiTY Group”).
They aim to define the conditions under which ODiTY Technology (hereinafter, Service Provider ») supplies professional customers (hereinafter, Customers” or “Customer »), through direct contact or a written request, with the following services: multichannel contact center and digital services, online surveys and panel management, online customer conversion and the ODiTY CX Platform (hereinafter, Services »).
They apply, unconditionally and without qualification, to all Services rendered by the Service Provider to Customers, whatever the clauses listed on the Customer’s documents, most notably the Customer’s General Conditions of Purchase.
In compliance with current regulations, these General Conditions of Sale shall be systematically communicated to any Customer who requests them, so that the Customer may place an order with the Service Provider. They are also available on the www.odity.com. website.
They shall also be communicated to all Customers before concluding a single convention, as referred to in Article L. 441-3 of the French Commercial Code, within legal deadlines.
Any order of Services implies, on the part of the Customer, the acceptance of these General Conditions of Sale, the General Conditions of Use and the Confidentiality Policy of the ODiTY Group sites.
The Service Provider shall have the right to make any changes that appear useful to the Service Provider.
The information found in the Service Provider’s catalogs, prospectuses and price list is given as an indication and may be revised at any time.
In compliance with current regulations, the Service Provider reserves the right to derogate from certain clauses of these General Conditions of Sale, according to negotiations carried out with the Customer, by indicating these derogations on contractual documents (estimates and invoices).
ARTICLE 2 – ORDERS
The sale of Services shall take effect only after the Customer’s express acceptance in writing of the estimate.
The Service Provider has electronic means for placing orders (including acceptance and confirmation) that enable Customers to order Services under the best conditions of convenience and rapidity.
The Customer shall be able to verify the order and total price, as well as to correct possible errors, before confirming acceptance
Validation implies the acceptance of the integrality of these General Conditions of Sale and constitutes proof of contract.
Acceptance and signing of the estimate shall be interpreted as a firm and binding agreement by the Customer for the duration of Services.
Acknowledgment and validation of the order by the Customer shall be confirmed by sending an email.
Data recorded in the Service Provider’s computer system shall constitute proof of the set of transactions carried out with the Customer.
In the case of an order for Services, any changes made to the order upon the request of the Customer shall be notified in writing, at least eight days before the planned date of providing the Services ordered, after signature by the Customer of a specific purchase order and a possible adjustment of price.
If the Customer cancels the order less than forty-eight (48) hours before Services are to be provided, a penalty of 250 euros shall be applied.
The contract is signed for a definite term. It shall be tacitly renewed at the end of each term for a period equal to that of the first subscription.
The Customer may not end the contract during the period to which the Customer has committed. In case of early termination, the Customer shall pay the Service Provider an amount corresponding to 40% of the total price, excluding tax, of the remaining Services scheduled for the period.
Customers who desire to block a tacit renewal of the contract shall address their request in writing to the Service Provider, at the latest 30 days before the end of the term.
ARTICLE 3 – RATES
Services shall be supplied at the Service Provider’s current rates on the day the order is placed, according to the estimate previously established by the Service Provider and accepted by the Customer, as indicated in the “Orders” article above.
Rates are understood as net and excluding tax.
The Service Provider shall establish an invoice for the provision of agreed Services and send it to the Customer each month.
The Customer may benefit from discounts, remittances and rebates, depending on the number of Services ordered or on the regularity of orders for Services, according to the conditions and terms described on the Service Provider’s price list.
ARTICLE 4 – PAYMENT CONDITIONS
4-1. Payment Deadlines
Invoices sent by the Service Provider shall be paid for by the Customer with a bank transfer, thirty (30) days at the latest from the date of invoice. The total price of the order shall be due upon presentation of the invoice and according to the means defined with the Customer on the estimate. The Service Provider does not grant a discount for payment before the invoice due date or within a period shorter than that mentioned in these General Conditions of Sale.
4-2. Lateness Penalties (Article L. 441-10, II of the French Commercial Code)
In case of late payment and transfer of the amount due by the Customer beyond the set deadline and after the date of payment listed on the invoice addressed to the Customer, lateness penalties calculated at an annual rate of 15% of the amount, including tax, of the price of Services listed on the invoice shall be applied by right by the Service Provider, with no further formalities or previous formal notice.
In case of failure to meet the payment conditions listed above, the Service Provider shall also reserve the right to suspend or cancel the supply of Services ordered by the Customer, to suspend the execution of the Service Provider’s obligations, and to decrease or cancel any discounts granted to the Customer.
A flat rate allowance for collection fees in the amount of 40 euros shall be applied to each invoice in case of failure to pay.
4-3. Absence of Compensation
Unless otherwise expressly agreed to beforehand in writing by the Service Provider, and on the condition that reciprocal amounts due and debts are certain, owed and due, the Customer may not validly compensate between possible penalties for a delay in the supply of Services ordered or non-compliance with the order, on the one hand, and amounts due by the Customer to the Service Provider for the purchase of these Services, on the other.
ARTICLE 5 – MEANS OF PROVIDING SERVICES
5-1. Execution of Services
The Service Provider shall carry out the task or tasks specified on the estimate with proper professionalism and in the best way. By express agreement, this obligation is only an obligation of means.
The supply of Services requested by the Customer shall begin following reception by the Service Provider of the estimate duly accepted and signed by the Customer.
This supply shall continue throughout the period of subscription until the subscription term is completed.
The Service Provider shall not be held responsible by the Customer in case of a delay in supplying Services corresponding to less than one (1) month. In the case of a delay longer than one month that can be attributed to the Service Provider, the Customer may request cancellation of the sale.
The Service Provider shall in no case be held responsible for a delay in or suspension of supply of Services that can be attributed to the Customer, or in case of force majeure.
In the case of a special request by the Customer concerning the conditions of supply of Services, duly accepted in writing by the Service Provider, costs related to this request shall be specifically billed on a complementary invoice, after previous acceptance of the estimate by the Customer.
In the absence of reservations or complaints expressly stated by the Customer upon reception of Services, these Services shall be considered compliant with the order, as concerns both amount and quality.
The Customer shall have eight days starting from the supply of Services to send any reservations or complaints, in writing, along with all pertinent justification, to the Service Provider.
No claim shall be accepted as valid if the Customer does not follow these formalities and meet this deadline.
The Service Provider shall reimburse or rectify (as nearly as possible), within the shortest possible time and at the Service Provider’s expense, according to adequate means agreed to by the Customer, the Services that the Customer has duly proven to be non-compliant.
5-2. Obligation to Collaborate
The Customer shall make available to the Service Provider all information that contributes to achieving the object of this contract.
ARTICLE 6 – SERVICE PROVIDER’S RESPONSIBILITY - GUARANTEE
Services supplied by the Service Provider shall comply with the description included in commercial documentation. It is up to the Customer to prove any non-compliance. The Customer, in the Customer’s professional capacity, shall be solely responsible for the choice of Services supplied by the Service Provider.
The Service Provider shall guarantee the Customer, in compliance with legal provisions, against any defect in Service conformity stemming from a defect in design or supply of these Services and excluding Customer negligence or fault.
The Service Provider shall be held responsible only in case of proven fault or negligence and shall be responsible for direct damage only, excluding all types of indirect damage.
To benefit from this guarantee, the Customer must, under penalty of renouncing to any related action, inform the Supplier in writing of the existence of defects within a maximum period of eight (8) days starting from their discovery.
The Service Provider shall correct or have corrected at the Service Provider’s expense, according to appropriate means agreed to by the Customer, Services that are judged to be defective.
In any event, if the Service Provider is held responsible, the Service Provider’s guarantee shall be limited to the amount, excluding taxes, paid by the Customer for Services supplied.
ARTICLE 7 – RIGHT OF WITHDRAWAL
Under current law, the professional Customer may benefit from a right of withdrawal if the Customer fulfills the three following cumulative conditions (Article L. 221-3 of the French Commercial Code) :
i. The contract must be concluded off-premises ((Article L. 221-1 I 2 of the French Commercial Code)
ii. The purpose of the contract must not be to enter the main field of activity of the company; and
iii. The number of company employees must be less than or equal to five (5).
In this specific case, there is a fourteen (14)-day withdrawal period, starting from conclusion of the contract, to exercise the right of withdrawing from the Service Provider and canceling the order, with reimbursement as the goal, where the Customer does not have to provide justification or pay a penalty unless the Customer has agreed to begin execution of Services before the end of the withdrawal period.
The right of withdrawal may be exercised through an unambiguous declaration expressing the wish to withdraw and sent by postal mail to the Service Provider at 8 rue Henri Becquerel, 92500 Rueil-Malmaison, France, or by email to email@example.com, listing the reference of the order concerned by this withdrawal.
If the right to withdrawal is exercised within the above-mentioned period, only the price of Services ordered is reimbursed.
The reimbursement of amounts effectively paid by the Customer will be carried out within fifteen (15) days, calculated from reception by the Service Provider of the Customer’s notification of withdrawal.
ARTICLE 8 – INTELLECTUAL PROPERTY RIGHTS
The Service Provider is the owner of all intellectual property rights for studies, designs, models, prototypes, etc., made (even at the request of the Customer) in view of providing Services to the Customer. Therefore, the Customer shall not reproduce or use these studies, designs, models, prototypes, etc., without the previous express written consent of the Service Provider, who may make them available in exchange for financial compensation.
In case of failure to carry out the stipulations of this article, an indemnity equal to 1,500 euros will be due for each study, design, model, prototype, etc., after mere formal notice by registered letter with acknowledgment of receipt, without prejudice to the right to damages benefiting the Service Provider and the Service Provider’s photographer partners.
ARTICLE 9 – UNFORESEEABILITY
In case of an unforeseeable change of circumstances when the contract is concluded, and under the provisions of Article 1195 of the French Civil Code, the Party that has not accepted to assume the risk of an excessively burdensome execution may request the co-contractor to renegotiate the contract.
If renegotiation is successful, the Parties shall establish a new order as soon as possible that formalizes the results of this renegotiation as concerns operations for supplying the Services concerned.
In addition, if there is a failure to renegotiate, the Parties may, under the provisions of Article 1195 of the French Civil Code, request by common agreement that a judge resolve or adapt the contract.
If the Parties are unable to reach an agreement on requesting a judge within one month following recognition of this disagreement, the first Party to act may request the judge to revise or resolve the contract.
However, if the unforeseeable change of circumstances at conclusion of the contract is definitive or would last longer than one month, this contract would be purely and simply resolved according to the means defined in the article “Termination for Unforeseeability”.
ARTICLE 10 – FORCED EXECUTION IN KIND
If either of the Parties fails to meet its obligations, the Party that is a victim of the failure shall have the right to require the forced execution in kind of obligations stemming from this contract. Under Article 1221 of the French Civil Code, the obligee may pursue this forced execution if formal notice addressed to the obligor by registered letter with acknowledgment of receipt has had no effect, unless forced execution is impossible or there is a manifest lack of proportion between its cost for the obligor, in good faith, and its interest for the aggrieved Party.
By express derogation to the provisions of Article 1222 of the French Civil Code, if either of the Parties fails to fulfill its obligations, the Party that is a victim of the failure shall not have the obligation executed by a third party and paid for by the faulty Party. The obligee may, however, file a lawsuit requesting that the faulty Party pay the amount necessary for this execution.
The Party that is a victim of failure may, in case of non-execution of any one of the obligations owed by the other Party, request termination of the contract according to the means listed in the article on “Contract Termination”.
ARTICLE 11 – NON-EXECUTION EXCEPTION
It is recalled that under Article 1219 of the French Civil Code, each Party may refuse to execute the Party’s obligation, even if it is due, if the other Party has not carried out its obligation and if this lack of execution is sufficiently serious; that is, susceptible of calling into question the continuation of the contract or of fundamentally upsetting its economic balance.
Suspension of execution shall take effect immediately, upon reception by the faulty Party of notification of failure, which shall be addressed for this purpose by the Party suffering from the failure and which indicates the intention of applying the non-execution exception as long as the faulty Party has not remedied the failure observed. It shall be signified by registered letter with acknowledgment of receipt or in any other permanent written form comprising proof of expedition.
This non-execution exception may also be used in a preventive way, according to the provisions of Article 1220 of the French Civil Code, if it is obvious that one of the Parties will not be able to execute on time the obligations incumbent to this Party and that the consequences of this non-execution are sufficiently serious for the Party suffering from this failure.
This power is used at the risk of the Party undertaking the initiative. Suspension of execution shall take effect immediately, upon reception by the Party presumed to be at fault of notification of the intent to apply the preventive non-execution exception until the Party presumed to be at fault carries out the obligation for which a coming failure is evident. It shall be signified by registered letter with acknowledgment of receipt or in any other permanent written form comprising proof of expedition.
However, if the impediment is definitive or lasts longer than thirty days counting from recognition of the impediment by registered letter with acknowledgment of receipt, the contract shall be purely and simply resolved according to the means defined in Article 13-4., “Termination for Failure of a Party to Meet Its Obligations”.
ARTICLE 12 – FORCE MAJEURE
The Parties shall not be held responsible if the non-execution or delay in execution of any of their obligations, such as described in this contract, results from a case of force majeure, as defined in Article 1218 of the French Civil Code.
The Parties agree that, under the provisions of the civil code and according to legal interpretation, force majeure results from an event that the obligor cannot control, one which could not have reasonably been foreseen when the contract was concluded and whose effects cannot be avoided using appropriate means, and which impedes the obligor from carrying out the obligation.
The Parties agree in particular on the fact that an epidemic or pandemic constitutes a case of force majeure when such an event shows the above-mentioned characteristics.
Each Party shall inform the other Party, as soon as possible and by registered letter with acknowledgment of receipt, of the occurrence of such a case when the Party esteems it to be of a nature that will compromise the execution of the Party’s contractual obligations.
If a case of force majeure occurs, execution of this contract shall be suspended until the disappearance, extinction or cessation of the case of force majeure.
Suspension of obligations shall in no case be a cause of responsibility for non-execution of the obligation under consideration, nor shall it lead to payment for damages or late penalties.
Execution of the obligation shall be suspended for the duration of force majeure, if it is temporary. Consequently, when the cause of suspension of reciprocal obligations has disappeared, the Parties shall make best efforts to carry out as rapidly as possible the normal execution of their contractual obligations. For this purpose, the impeded Party shall notify the other Party of the resumption of its obligation by registered letter with acknowledgment of receipt or any other extrajudicial document.
During this suspension, the Parties agree that expenses engendered by the situation shall be paid for by the impeded Party.
However, if the case of force majeure lasts longer than thirty (30) days, the Parties shall establish contact in order to discuss a possible modification of the contract.
The deadlines planned for in this contract shall be automatically postponed according to the duration of the case of force majeure.
In the absence of an agreement between the Parties within thirty (30) days and if the case of force majeure continues, each of the Parties shall have the right to terminate this contract, without compensation being due by either of the Parties, in agreement with Article 13.3., “Termination for Force Majeure”.
However, if, when force majeure occurs, the delay appears to justify termination of this contract, the contract shall be rightfully terminated and the Parties shall be freed of their obligations under the conditions listed in Articles 1351 and 1351-1 of the French Civil Code.
ARTICLE 13 - CONTRACT TERMINATION
13-1. Termination for Unforeseeability
Termination because of the impossibility of carrying out an obligation that has become excessively burdensome shall, notwithstanding the clause found hereinafter of “Termination for Failure of a Party to Meet Its Obligations,” occur only fifteen days after the reception of a registered letter with acknowledgment of receipt or any extrajudicial document declaring the intention to apply this clause.
13-2. Resolution for Non-execution of a Sufficiently Serious Obligation
The Party that is a victim of failure may, notwithstanding Clause 13-4., “Termination for Failure of a Party to Meet Its Obligations” hereinafter, in the case of a sufficiently serious non-execution, notify the faulty Party by registered letter with acknowledgment of receipt of the termination for fault of this contract, fifteen days after reception of formal notice to execute has remained without effect, in application of the provisions of Article 1224 of the French Civil Code.
13-3. Termination for Force Majeure
Rightful termination for force majeure, shall, notwithstanding the clause found hereinafter of “Termination for Failure of a Party to Meet Its Obligations,” occur only fifteen days after the reception of a registered letter with acknowledgment of receipt or any extrajudicial document.
This formal notice shall mention the intention to apply this clause.
13-4. Termination for Failure of a Party to Meet Its Obligations
In the case where one or the other Party has not carried out the following obligations:
i. On-time payment by the Customer of invoices; or
ii. Supply of Services ordered by the Service Provider within the agreed deadlines;
It is expressly understood that termination for failure of a Party to meet its obligations shall rightfully occur fifteen (15) days after the sending of formal notice to execute, which is wholly or partially without effect. Formal notice may be given by registered letter with acknowledgment of receipt or any other extrajudicial document.
This formal notice shall mention the intention to apply this clause.
13-5. Shared Provisions in Case of Termination
If Services exchanged between the Parties after conclusion of the contract and until its termination have proven their utility throughout the reciprocal execution of this contract, they shall not be restituted for the period before the last Service that did not receive its counterpart.
In any case, the injured Party may file a lawsuit to request the awarding of damages.
ARTICLE 14 - PERSONAL DATA
Information collected on the Customer is used by the Service Provider for computer processing and is indispensable for carrying out the Customer’s order. This information and personal data is also kept for reasons of security in order to meet legal and regulatory obligations.
The ODiTY Group has a Confidentiality Policy that can be accessed on the company’s sites and that describes how the Customer’s personal data is used and processed. The ODiTY Group also has three documents giving information to Customers concerning the processing of their personal data: (i) A document related to achieving GDPR conformity, (ii) a certificate of GDPR conformity and (iii) a document explaining the actions taken to comply with the GDPR.
In compliance with Law no. 78-17 dated January 6, 1978, concerning information technology, files and personal freedom, modified by Law no. 2004-801 dated August 6, 2004, and with European Regulation no. 2016/679, the Customer has the right to access, rectify, remove and port data concerning the Customer, as well as the right to oppose processing of this data for a legitimate reason, rights which may be exercised by contacting the person responsible for processing.
In compliance with Article 37 of the aforementioned European Regulation, the ODiTY Group has named Philippe Munier, Director of Support and Services, as the DPO (firstname.lastname@example.org).
The ODiTY Group declares that it keeps a written record of all categories of processing activities carried out on behalf of the Customer that includes all information listed in Article 30.2 of the Regulation.
The ODiTY Group declares that it has made the following processing declarations to the CNIL:
i. Declaration of conformity to the NS 48 Simplified Standard concerning customer and prospect files; and
ii. Declaration of conformity to the NS 57 Simplified Standard concerning listening in on and recording telephone conversations in the workplace.
The ODiTY Group declares that it receives support on issues related to the protection of personal data from a specialized consulting company, CIL Consulting, which is “CNIL-labeled”.
In agreement with the Service Provider, the Customer defines the main reason for personal data processing in the context of Services entrusted to the Service Provider by the Customer.
The Parties shall keep personal data that has been processed only for the time needed for the purpose of processing and, in any case, for a maximum duration of one (1) year.
The ODiTY Group affirms that it ensures sufficient guarantees, in particular in terms of knowledge, reliability and resources, for the implementation of technical and organizational means that satisfy legal and regulatory obligations concerning personal data protection.
The ODiTY Group shall:
i. Process personal data only for the purpose of providing Services ;
ii. Process personal data in compliance with the Customer’s documented instructions ;
iii. Guarantee the confidentiality of personal data processed within the framework of the contract ;
iv. . Ensure that the persons authorized to process personal data in virtue of the contract commit to maintaining confidentiality or are subject to an appropriate legal obligation of confidentiality and receive the necessary training with respect to the protection of personal data ;
v. Take into account, in the case of company tools, products, applications or services, the principles of data protection from the start and by default ;
vi. Immediately notify of any modification or change that may have an impact on personal data processing ;
vii. Ensure that personal data is kept only for the period corresponding to the purpose for which the data was collected or transmitted and that personal data is removed at the conservation expiry date; and
viii. Cooperate with the Customer to envisage situations where making personal data anonymous may be appropriate.
The ODiTY Group shall notify the Customer of any violation of personal data, as defined in Article 4.12 of the Regulation, within a maximum delay of forty-eight (48) hours after noting this violation by sending a message to the email address supplied by the Customer.
The message shall include all documents in the company’s possession that will allow the Customer, if necessary, to let the competent authority know about this violation. As nearly as possible, the notification shall specify the nature and consequence of the data violation, the measures already undertaken or that have been proposed to remedy the situation, the persons from whom additional information may be obtained and, if possible, an estimate of the number of persons who may be impacted by the violation.
Personal data on the Customer collected by the ODiTY Group is sent to the company’s legal entities or to third companies or sub-contractors (that may operate outside the European Union) for the sole purpose of managing the contract in conformity with the applicable legal and regulatory provisions.
In case of complaint, the Customer may directly contact the Commission Nationale de l’Informatique et des Libertés (CNIL, or National Commission for Information Technology and Civil Liberties).
ARTICLE 15 – DISPUTES
In view of finding together a solution for disputes that may arise during the execution of this contract, the contracting parties agree to meet within eight days following reception of a registered letter with acknowledgment of receipt sent by one of the two Parties.
This procedure for finding an amicable resolution is a mandatory prior step before legal proceedings between the Parties may be opened. Any legal proceedings in violation of this clause shall be declared inadmissible.
However, if after a one-month period the Parties are unable to agree on a compromise or a solution, the dispute shall be submitted to the jurisdiction designated hereinafter.
In virtue of Article 1540 of the French Civil Procedure Code, if the Parties reach an agreement, this agreement is noted in writing and signed by each Party.
The conciliation shall be written in French. If it is translated into one or more languages, only the French text shall prevail in case of dispute.
The Parties may also request a competent judge to certify the agreement in order to make it binding (Article 1541 of the French Civil Procedure Code).
ARTICLE 16 – JURISDICTION
All disputes that may arise from this contract and the agreements resulting from it concerning their validity, interpretation, execution, resolution, consequences and follow-up shall be submitted to the competent courts under the conditions of common law.
ARTICLE 17 – CONTRACT LANGUAGE AND APPLICABLE LAW
By express agreement between the Parties, these General Conditions of Sale and the purchasing and sales operations that result from them are governed by French law. They are written in French. If they are translated into one or more languages, the French text shall prevail in case of dispute.
ARTICLE 18 – CUSTOMER’S ACCEPTANCE
These General Conditions of Sale are expressly agreed to and accepted by the Customer, who declares and recognizes having full knowledge of them, and, because of this, the Customer shall not use any contradictory document, in particular the Customer’s own General Conditions of Purchase, against the Service Provider, even if the latter was aware of them.