EVALANDGO Software TERMS OF USE FREE USERS
ARTICLE 1 – SCOPE
These general terms of service are applied to online services provided for free by EVALANDGO Software, a simplified joint-stock company with capital of € 5,000, having its registered office at 159 Rue de Thor Business Plaza – BUILDING 3, 34000 MONTPELLIER, registered at RCS of Montpellier under the number 917 437 063, through its Website or its Application.
The Terms apply to all Free Users, independently from their location and for the world.
In accordance with Articles L. 111-1 and L. 111-4 of the Consumer Code, the essential characteristics and the prices of the Services offered by EVALANDGO Software by electronic means are available on the Site.
EVALANDGO Software also communicates to the consumer information relating to his identity, his postal code, telephone and electronic contact details and his activities, the functionalities of the digital content and, if applicable, its interoperability, the existence and the methods of implementation. safeguards and other contractual conditions in accordance with Articles R. 111-1 and R. 111-2 of the Consumer Code.
In addition, the Customer receives the information provided for in Articles L. 122-1 and L. 221-11 of the French Consumer Code, before and after the conclusion of the Agreement and in particular by means of these General Conditions of Services.
The Free User acknowledges having communicated, before the conclusion of the Contract, in a clear and understandable manner, the TOS and all the information listed in Article L.221-5 of the Consumer Code, and in particular the following information:
– the essential characteristics of the Application;
– information related to the identity of EVALANDGO Software, its postal code, telephone and electronic contact details, and its activities, if they are not already shown,
– the information related to the legal and contractual guarantees and their methods of implementation,
– the functionality of the digital content and, if applicable, its interoperability,
– the possibility of resorting to a conventional mediation in case of litigation.
ARTICLE 2. OBJECT
The Terms of Use are intended to specify the general terms and conditions for the provision of free features of the Application for conducting Surveys and Reports through an Application Server, via Internet.
EVALANDGO Software reserves the right to modify the Application, but to improve constantly.
By subscribing to the free services provided by the Application, the Free User declares to have read the Terms and to have accepted them in full, without any restriction or reservation.
The Free User renounces, in particular, to take advantage of any document contradictory to the Terms, that could not be opposed to EVALANDGO Software.
The Free User acknowledges having the capacity necessary to conclude the Contract.
ARTICLE 3. CONTRACTUAL DOCUMENTS AND TERMS OF CONCLUSION OF THE CONTRACT
3.1. CONTRACTUAL DOCUMENTS
The Contract includes the following contractual documents, organised in the following order of priority:
– The Terms,
– Annexes : Privacy Policy et Data Protection Agreement (DPA)
The Data Protection Agreement (DPA) is an integral part of the Agreement between the Client and Eval&GO. In the event of any contradiction between the Agreement and the DPA, the obligations set out in the DPA shall prevail as regards the applicable data protection rules.
Any condition posed by the Free User or any certification, guarantee or other mention that is not contained in the documents referred to above, cannot be applied to EVALANDGO Software. The same is applicable to any agreement prior to this contract, express or implied, in any form, including any e-mail exchange between the Parties. These possible agreements are considered as unwritten.
3.2. APPLICATION SUBSCRIPTION
The subscription to free services is done through the Site by creating a Free Evalandgo Account.
The acceptance of the TOS is made by ticking the box provided for this purpose on the Subscription Page.
ARTICLE 4. COMMITMENTS OF THE PARTIES:
4.1. EVALANDGO Software COMMITMENT
EVALANDGO Software undertakes to respect, as part of the execution of the present, the laws and regulations.
EVALANDGO Software is solely responsible for the corrective and evolutionary maintenance of the Application.
EVALANDGO Software will therefore be personally responsible for performing corrective maintenance so not to prevent or hinder access to the Application beyond a reasonable period of time.
EVALANDGO Software undertakes to make regular backups of the Data until termination of the Contract, regardless of the cause.
EVALANDGO Software is committed to maintain the integrity and confidentiality of the Data.
In case of difficulty in the use of the Application, EVALANDGO Software provides free User Documentation (FAQS, tutorial videos) open access 7 days/7 and a hotline for working days and hours.
The following days are considered as working days: Monday, Tuesday, Wednesday, Thursday and Friday, excluding public French holidays. The working hours are the following, during working days: from 9:30 to 12:30 and from 14:00 to 18:00, Paris time, excluding annual closures.
The hotline can be contacted as follows:
– E-mail to the following address: contact@evalandgo.com or support@evalandgo.com
– Via ticket, via the application directly
– Via chat
– Via telephone, at the following number: +33 (0)4.67.17.96.77; price of the call: call not surcharged
EVALANDGO Software warrants that it is the author or copyright owner of the Application. EVALANDGO Software therefore guarantees that the use of the Free User Application within the framework of and in compliance with the Agreement does not in any way affect the rights of third parties.
4.2. Free User Commitments
EVALANDGO Software has no tolerance for spam. As a result, while the Free User uses the App, it is forbidden:
– to practice spamming,
– to host or collect information about anyone without the consent of the person concerned, including e-mail addresses,
– to transmit or offer unsolicited or unauthorised advertising or promotional material of any kind, such as “junk mail”, “spam”, “chain”, “pyramid system” or any other form of solicitation.
EVALANDGO Software reserves the right to suspend the Agreement without notice if it considers that the Free User practices activities that do not comply with its ANTI-SPAM policy as described above.
The Free User may be considered a Spammer if a Survey via the Application is published, with invalid emails, that is to say that do not exist or more, or that contain one or more errors, e-mails hereinafter referred to as “Unqualified Address”.
If at the end of the following procedure of the publication of the Survey via email, 10% of 50 of the listed email addresses used are unqualified addresses, the Free User is invited to “clean” his file. The e-mail addresses will be resubmitted for sending up to three times. If at the end of the third time, the sending still contains 10% or more of unqualified addresses out of 50, the Free User will then be considered as a Spammer and will not be able to use the email publishing on the Application anymore.
He is also forbidden:
– to disseminate through the Application pornographic, obscene, offensive, threatening, harassing, slanderous, hateful, harmful, defamatory, racist, illegal or otherwise debatable content;
– to use an identity, an electronic address or a false or falsified header, or to attempt by any means to mislead others as to his identity or the origin of his messages;
– to transmit, publish or distribute material or content encouraging or providing instructions for illegal activities, or encouraging physical harm or violence against a specific group;
– to use the Application to send media of any kind, including surveys or invitations to surveys, to people under the age of 18, unless it has taken and followed all the measures necessary to respect any applicable law in this context;
– to download or distribute by any means any files containing viruses, Trojan horses, worms, time bombs, undo robots, corrupted files or other software or programs likely to affect the proper functioning of the computer of anyone else at the Service or the Site;
– to transmit any content infringing the copyrights, trademarks, trade secrets or intellectual property of anyone;
– interfere with or interrupt the networks connected to the Application;
– to attempt to gain unauthorised access to the Application by stealing password or any other means.
Any breach of this article will be reported to the appropriate authorities and will result in the immediate termination of the Agreement.
On the other hand, when the Free User subscribes to the Application, he is obliged to:
– provide a valid name and e-mail address at the time of subscription, and update this information if necessary,
– regularly back up the data in csv format;
The Free User respects the employees and corporate officers, the provisions of the Contract established by the employees and corporate officers, including those referred to in this article.
The Free User agrees to respect the normal conditions of use of the Application, to read and apply strictly the instructions indicated by EVALANDGO Software for the use of the Application.
The respect by the Free User of the above stipulations constitutes for EVALANDGO Software an essential condition of the Contract.
ARTICLE 5. INTELLECTUAL PROPERTY
5.1 Free User Property
The Free User remains the owner and sole responsible for all Surveys designed by him and distributed via the Application. He is also responsible for elements such as images, design, information, inserted in the Surveys and Reports as well as all data and Results collected via the Application.
5.2 EVALANDGO Software Property
5.2.1 EVALANDGO Software remains in any case the exclusive owner of the intellectual property rights of the Site and the Application on each of the component, including the graphic presentation and Documentation.
By this contract, the Free User has the right to use the Application, which is non-exclusive, non-transferable and limited to the duration of the Contract.
EVALANDGO Software expressly reserves the exclusive right to intervene on the Application to allow the clients to use it according to their purpose, more specifically to correct errors.
The Free User agrees to report to EVALANDGO Software any counterfeiting act and any infringement of its intellectual property rights relating to the Application of which he could have knowledge.
It will be up to EVALANDGO Software only to determine the advisability of taking legal action against the alleged infringers.
EVALANDGO Software ensures being the author or owner of the rights to the Application and therefore guarantees the rightful use for the benefit of the Free User during the term of the Agreement.
In any case, EVALANDGO Software will not be liable for any infringement of the rights of third parties by the Free User in connection with the use of the Application.
5.2.2. EVALANDGO Software grants to the Free User, who is accepting, a non-exclusive access right to the Application, for the duration provided for in Article 10 of the Terms.
The use by the Free User of the Application must be made be coherent with their purpose and for their own needs.
This right of access is granted to the Free User for strictly personal reasons and can neither be transferred nor transmitted to a third party for any reason.
The Free User is not allowed to give access to the Application to a third party without EVALANDGO Software prior written consent. The Free User will not be able to give, even if free of charge, a right of use, nor a right of access to the Application to third parties, in any way or in any form.
5.2.3 Restrictions
The Free User is cannot infringe the economic and moral rights of EVALANDGO Software on the Application and any additional elements.
As a consequence, the Free User cannot use the Application in any way that is not explicitly provided by law for the benefit of the Free User or not expressly authorised by the Agreement, more specifically:
– To use it outside the conditions provided in the Contract or to copy it;
– To correct or have corrected by a third party any anomalies of the Application, without the prior written consent of EVALANDGO Software;
– Use third-party maintenance;
– To grant a loan, lease, assignment or any other type of provision of the Application or of its Documentation by any means, including Internet;
– Transfer and/or procure in other ways the Application to a third party for the purpose of installing, copying or otherwise using it without the express consent of EVALANDGO Software;
– To spread, distribute or market the Application, whether for valuable consideration or free of charge, or to use it for the purpose of providing service or training to third parties;
– To disassemble or take parts of the Application and generally not to reconstitute the logic of the functionalities of the Application, nor to transfer the functionalities of the Application to a perceptible format.
– To adapt, modify, transform, or even fix the Application, especially to create derivates or new features of a derivate or new software;
– To transcribe or translate the Application into other languages;
– To alter, modify, move or replace trademarks, trade names, logos, copyrights and any distinctive elements as they are or have been shown on the Application and each of its components and/or Documentation.
If the Free User wishes to make the Application interoperable, he must contact EVALANDGO Software to make any adaptations and/or obtain the information strictly necessary for this interoperability.
In any case, EVALANDGO Software is the only authorised to intervene on the Application and is the only to take the final decision allow the interoperability or not, under the discretion of the choice of EVALANDGO Software, without opening any obligation towards the Free User or any right to compensation in case of a negative response from EVALANDGO Software.
Respecting of the above stipulations is for EVALANDGO Software an essential condition of the Contract for the Free User.
5.3. Intellectual property rights granted to the User Free access when accessing to the Application
EVALANDGO Software consents to the Free User, for the use of the Application exclusively, the right to use the Catalog of questionnaires, during the Agreement, for the whole world.
ARTICLE 6. DECLARATION OF INDEPENDENCE OF THE PARTIES
The Parties expressly declare that they are and will remain, throughout the duration of this contract, independent business and professional partners, each insuring the risks of their own activities.
ARTICLE 7. COOPERATION OF THE PARTIES
The Parties undertake to perform this Agreement in good faith.
At the end, each Party undertakes to ensure, in the best interests of the execution of the Contract, the stability and competence of the personnel involved in its execution. If during the execution of the contract there is a difficulty, the collaboration of the Parties commits them to alert each other, and without delay, and to consult each other in order to apply the most suitable Solution as soon as possible.
ARTICLE 8. RESPONSIBILITY
8.1 EVALANDGO Software Responsibility
EVALANDGO Software undertakes to implement the necessary measures to allow a normal functioning of the Application, within the general measures applicable.
The responsibility of EVALANDGO Software cannot be committed in the event of non-execution or bad execution of the contract due, either to the fact of the Free User or to the insurmountable and unpredictable intervention of a third party to the contract, or in case of force majeure.
EVALANDGO Software cannot be responsible, in particular, for the unavailability of the Application in the following cases: case of force majeure as defined in article 1218 of the French Civil Code that is usually retained by the courts, as well as in case Difficulties related to the Host, the Internet, the telecommunications or the Free User’s network structure, the computer hardware and the programs used by the Free User.
Moreover, EVALANDGO Software cannot guarantee that:
✓ The use of the Application will be uninterrupted or without errors,
✓ The Application will work in combination with any hardware, software, system or data, except for those declared by EVALANDGO Software, which are compatible with the Application on the Site.
✓ The Server(s) will be free of viruses or other harmful elements.
Finally, the Free User is informed that access to the Application could be temporarily suspended by EVALANDGO Software to perform maintenance operations or updates under the conditions described in the Agreement. The Free User will be notified of maintenance operations or updates, within reasonable time, by an email or a message on the Application.
EVALANDGO Software is covered by a professional indemnity insurance policy including the risks related to the operation of the Application.
If the Free User is not a consumer or a non-professional, that is to say he uses the Application in the context of a business operation, for his own profit or for the benefit of a natural or legal person who is not a consumer or non-professional, in case of fault or total or partial non-performance by EVALANDGO Software of his obligations under the Contract, his liability shall be limited to the direct harm (material and immaterial) incurred by the Free User, within the limit of € 300. EVALANDGO Software will not compensate for any indirect loss, commercial loss, loss of customer base, turnover, or any loss of profit and no loss of data loss or deprivation of use suffered by the Free User non-consumer or non-consumer professional, or a third party. If the non-consumer or non-professional Free User has failed to bring the supposed contractual liability of EVALANDGO Software within one (1) year from the date of the damage, the Free User will be deemed to have renounced to take advantage of any contractual breach.
8.2 Free User Responsibility
The Free User is responsible for the use he makes of the Application, directly or via his employees, corporate officers, temporary employees and more generally people in contact with him. It undertakes to guarantee EVALANDGO Software against any prosecution that may be initiated, as well as any conviction against the latter, because of the use that will be made of the Application.
Free use of the Application is at the risk and peril of the Free User. As a consequence, the responsibility of EVALANDGO Software can not be engaged in case:
– Of loss of data,
– Fraudulent use of the identifiers of the Free User by a third party or fraudulent access to the hosted data,
– Data loss resulting from the free use of the Application,
– Damages, including loss of profits, loss of use, interruptions of activities or other losses resulting from the free use of the Application.
ARTICLE 9. ACCESS TO THE APPLICATION
For the use of the Application, the Free User is invited to create his Free Evalandgo Account, with a valid email address and a confidential password.
The identifiers are unique, personal and strictly confidential.
The Parties undertake, as far as they are concerned, to preserve confidentiality. The Free User is solely responsible for their use.
Any use of the identifiers is irrefragably deemed to constitute a use of the Application by the Free User, which he declares to expressly accept.
The evalandgo Free account is single user. The Free User must immediately warn of any unauthorized use of his identifiers or any breach of the confidentiality of his identifiers.
ARTICLE 10. DURATION
The Contract is concluded for an indefinite period running from the creation of the Free User Evalandgo Account. It may be terminated by any Party at any time without previous notice. The interruption results in the removal of the Free Evalandgo Account from the Free User. The interruption, for the Free User, is made via the Application, by removing the functionalities of the Evalandgo Free Account.
After the termination of this contract for any cause, the data of the Free User are kept for the period referred to in the EVALANDGO Software Privacy Policy referred to in Appendix: Privacy Policy.
If the Application is not accessed for a period of 18 consecutive months, the Free User will lose all rights of access to the Application through his Free Evalandgo Account, as the Evalandgo Free Account will be deleted.
At the end of the Agreement, the Free User will lose all rights to access the Application through his Free Evalandgo Account, and it will be deleted.
ARTICLE 11. SUSPENSION OF THE CONTRACT
11.1 Cases to suspend the Contract
In case of disregard of the provisions of articles 4.2 and 5.2 of CGU and of Paragraph V of Annex: Data Protection Agreement (DPA) EVALANDGO Software reserves the right to suspend, without any previous notice or compensation, the access to the Application, and the free user cannot require any compensation.
11.2. Consequence of the suspension of the contract
The suspension of the Contract entails the suspension of access to the Application during the period of suspension.
ARTICLE 12. DATA AND PERSONAL DATA
The Parties undertake to comply with the applicable data protection rules and, in particular, law n° 78-17 of January 06, 1978 as amended, known as the “Data Protection Act” as well as Regulation (EU) 2016/679 of April 27, 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data “GDPR”. The Parties agree that Eval&GO is qualified as a processor within the meaning of Article 28 of the GDPR and that the Client is qualified as the controller. Under no circumstances can the Parties be considered to be joint controllers for the service. As such, the Parties agree that the applicable obligations in terms of subprocessing are described in the data protection agreement available here Data Protection Agreement (DPA). In the event of an error in the qualification of the Parties, the Parties must meet to modify this clause and take all measures relating to such a situation to comply with the requirements of the applicable rules. In addition, Eval&GO may need to process Client data as part of the implementation of the service. For any information in this respect, the Client may consult the Privacy Policy of Eval&GO accessible at any time on its website www.evalandgo.com. The Client undertakes to inform its users of this Privacy Policy.
ARTICLE 13. SHARING OF THE CONTRACT – SUBCONTRACTING
EVALANDGO Software is free to assign this Agreement to any third party of its choice, at any time. In case of assignment of the this Agreement, the Free User will be able to oppose to the assignment because the information will be transmitted by the third party assignee to the Free User by email.
The Free User agrees, on his side, to allow the transfer, for any cause and in any form, without any charge, of the Contract or any of his rights and obligations to a third party.
However, these prohibitions can not be imposed to any contrary legal provisions of public order, nor in case of prior written authorisation of the Parties.
However, the Free User is authorised to transfer this contract as part of a sale of his business or activity. In any case, each Party shall notify the other Party 30 days before this assignment by notice.
Finally, EVALANDGO Software may decide, in some cases, to subcontract all or part of the Contract and more generally to use subcontractors to execute the Contract and give access to the Application.
Every time that, in the Contract, EVALANDGO Software is mentioned as the legal entity responsible for performing a service or performing an obligation, it is intended EVALANDGO Software or one of its subcontractors.
ARTICLE 14. TOLERANCES
It is formally agreed that any tolerance or abandon of one of the parties, in the application of the commitments provided for in this contract, fully or partially, at any frequency and duration, cannot generate a modification of this contract , nor generate any right.
ARTICLE 15. MODIFICATIONS
Any modification of this agreement must be a written agreement in paper or digital form between the Free User and EVALANDGO Software.
EVALANDGO Software reserves the right to modify the TOS at any time. In case of modification, the general conditions applicable are those on the date of conclusion of the Contract or those later accepted by the Free User via the Application.
ARTICLE 16. FORCE MAJEURE
Similarly, in case of force majeure or any other cause going beyond the control of one of the parties and likely to prevent the performance of its contractual obligations, the party prevented shall inform the other party by any means as soon as possible. A proof of the existence and cause of this event shall be provided no later than ten working days after its appearance. It must be notified as soon as possible the cessation of this event.
The obligations of the parties will be suspended for the duration of the force majeure and the parties will make every effort to limit the duration and effects of the cause of force majeure. However, if this period goes beyond one month, the parties will discuss the conditions for the continuation or the eventual ending of this agreement.
ARTICLE 17. PARTIAL INVALIDITY
The nullity or inapplicability of any of the stipulations of this contract shall not invalidate the other stipulations which will retain all their force and their scope.
However, the parties may by mutual agreement, agree to replace the invalidated provision(s).
ARTICLE 18. APPLICABLE RIGHT. LANGUAGE OF THE CONTRACT
This agreement is governed by the laws and regulations of the French Republic.
This agreement was originally written in French. In the event that it is translated into one or more languages, only the French text will prevail in case of dispute.
ARTICLE 19. PROCEDURE FOR THE AMICABLE SETTLEMENT OF DISPUTES – JURISDICTION OF COURTS
All disputes that may be generated during the operations of purchase and sale under these general conditions of use, about their validity, interpretation, execution, cancellation, consequences and results and which would not be solved between EVALANDGO Software and the Free User, will be submitted to the competent courts under common law conditions.
In case of dispute, the Free User is informed that he can negotiate conventionally in any case, in particular, if he is a consumer from the French Commission de la médiation de la consommation (Article 612-1) or from other existing sectoral mediation organizations, whose information appear on the website of the French Ministry of the Economy, via the link https://www.economie.gouv.fr/mediation-conso or via any alternative method of payment disputes (for example, in case of conciliation).
–Definition–
Annex: element of the Contract appearing in the appendix of the Terms of Use
Application: Software package developed by EVALANDGO Software, gathering all the functionalities allowing to create and host Surveys, Reports, Results, to host the Data and accessible within the framework of the model “software as a service” via the Site or the url app.evalandgo.com .
Catalog of questionnaires: pack of ready-to-use questionnaires, designed by EVALANDGO Software, a part of the Application, which can be used without any charge by the Free User during the Contract, worldwide, and if necessary, customizable.
Evalandgo Free account: online space dedicated to the Free User, where he can access via his ID, within which he can register his Data, and from which he can benefit from the free features of the Application and view or download his data in csv format.
TOS : Contractual provisions set out above, prior to the Annexes
Special conditions: information on the Subscription Page.
Contract: contract concluded between the Free User and EVALANDGO Software, by the validation of the Subscription Page, to access the Application, and combining the elements mentioned in article 3 of the TOS.
Documentation: Set of information presenting the different functionalities of the Application and how to use these features, accessible via the Application.
Data: Information and digital elements transmitted by the Free User and hosted on the Server, as part of the use of the Application.
Host: Specialised company providing servers to EVALANDGO Software.
Hotline: service offered by EVALANDGO Software to answer any questions from the Free User regarding the use or interruptions of the Application, either by mail or by phone.
Login: e-mail address provided by the Free User when creating the Evalandgo Free Account or later modified.
Subscription page: Web page accessible via the Site, allowing to subscribe to the Application, on which the Free User has to mention his ID data and specify a free access to the Application.
Trial period: time during which the Free User can test for free, normally paid features of the Application.
Involved person: natural persons whose personal data are processed under the Contract.
Report: Document generated through the Application, to present in a comprehensible way the answers of the Surveys, whose content can be modulated and customised, via the Application.
Results: information collected through the Application via Respondents.
Server: Computer equipment belonging to the Host and located in specific sites, containing the Application and on which EVALANDGO Software has a exclusive right of use or not and as such, may store all or part of the Data.
Site: websites www.evalandgo.com ; www.evalandgo.com/fr ; www.evalandgo.com/es
Survey: main functionality of the Application allowing to design and publish online digital questionnaires and to collect the answers to the Survey and to generate Reports.
Respondents: People participating to a survey.
Free user: Natural or legal person having subscribed to the Contract without any charge.
