General terms of service EVALANDGO Software

General terms of service EVALANDGO Software Professionals

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, towards clients having the title of professionals.
By subscribing to the services provided by the Application, the Customer declares having read these general conditions and to have fully accepted them, without any restriction or exclusion. The subscription to the services provided by the Application is therefore full acceptance of the terms and conditions. The Customer acknowledges having the capacity required to conclude the Contract.
EVALANDGO Software reserves the right to modify these terms and conditions at any time. In case of modification, the general conditions applicable are those in force on the date of the subscription of the Licenses or those accepted later by the Customer via the Application.

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 provides hosting and backup of the Application, Surveys, Data and Reports, maintenance and security, technical support and hotline.
EVALANDGO Software reserves the right to modify the Application, but to improve constantly.
The Contract refers to online services of software media without delivery.
These General Terms and Conditions constitute, according to Article L 441-6 of the French Commercial Code, the sole basis of the commercial relationship between the parties.

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 Particular conditions
– The General Conditions
– Annexes : Privacy Policy and 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 asked by the Client or any certification, guarantee or other mention not contained in the documents referred to above, is ineligible for EVALANDGO Software. The same is applicable to any agreement prior to this contract, expressed or implied, in any form, including by e-mail exchanges between the Parties. These possible agreements are considered as not written.

3.2. SUBSCRIPTION TO THE APPLICATION

The subscription to the Application can be made via the Site or by accepting a quote from the EVALANDGO Software Sales Team.

3.2.1. Subscription via quote:

If the customer requests it, a quote will be sent by EVALANDGO Software by email and will have a validity period of thirty days or more, according to what is indicated on the quote.
This quote will specify the details of the Client, the kind of Subscription, the number of users, the duration of the Contract, the additional Services, as well as the detailed costs and the total, expressed excluding taxes and with all taxes and the terms of payment. The creation of the quote is free of charge.
Any Quote validated by the Client will constitute an irrevocable acceptance of the Contract and thus these General Conditions.
EVALANDGO Software reserves the right to refuse any subscription of a Client with whom there is a dispute about the execution of a contract for the use of the Application.

3.2.2. Online subscription:

The acceptance of the Terms and Conditions is done by ticking the box provided for this purpose on the Subscription Page.
The Customer has the opportunity to check the details of his subscription, the amount of the Subscription, and correct any mistakes before confirming the acceptance, in accordance with Article 1127-2 of the French Civil Code. This validation implies acceptance of the entire Agreement and constitutes the proof of the Contract.
EVALANDGO Software reserves the right to refuse any subscription of a Client with whom there is a dispute about the execution of a contract for the use of the Application.

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./br> 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 Clients 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 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. Client’s Commitment

EVALANDGO Software has no tolerance for spam. As a result, while the Professional 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 client practices activities that do not comply with its ANTI-SPAM policy as described above.
The Client 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 Client 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 Client 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, the Client who subscribed to the Application is obliged to:

– provide a valid name and e-mail address when subscribing, and update this information if necessary
– regularly back up its Data, Results and Reports on its own computer hardware;
The Customer makes sure of the respect by its employees and corporate officers, the provisions of the Contract by its employees and corporate officers, including those referred to in this article.

ARTICLE 5. ORDER – RATES – PAYMENT TERMS

Access to the whole Application, or to a part of the features, is provided at the current rates mentioned on the Site, according to the date of the registration at the moment of the subscription. Prices are mentioned in Euros, without taxes and all taxes included, or in dollars according to the IP address of the Client at the moment of the online subscription.
For Customers who have subscribed to quotes, EVALANDGO Software will invoice the Customer by e-mail. The invoice will mention the information referred to in Article L. 441-3 of the French Commercial Code. Prices will be expressed in Euros, without taxes and all taxes included, or in dollars according to the location of the billing address of the customer.
For Customers who subscribed online, the invoice will be available online within the Application, in the settings of the Evalandgo Account.
The entire payment of the price occurs at the time of the order by the online payment method selected by the Client or in the way mentioned in the quote, that is to say:

– Via bank transfer,
– Via check.

ARTICLE 6. INTELLECTUAL PROPERTY

6.1 Client Property

The Client 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.

6.2 EVALANDGO Software Property

6.2.1 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 Client 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 Client 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 Client 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 Client in connection with the use of the Application.

6.2.2. EVALANDGO Software grants to the Client, who is accepting, a non-exclusive access right to the Application, for the duration provided for in Article 13 of the Terms of Service.
The use by the Client of the Application must be made be coherent with their purpose and for their own needs.
This right of access is granted to the Client for strictly personal reasons and can neither be transferred nor transmitted to a third party for any reason.
Except if mentioned in the quote, the Client is not allowed to give access to the Application to a third party without EVALANDGO Software prior written consent. The Client 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.

6.2.3 Restrictions
The Client is cannot infringe the economic and moral rights of EVALANDGO Software on the Application and any additional elements.

As a consequence, the Client cannot use the Application in any way that is not explicitly provided by law for the benefit of the Client 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 Client 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 Client 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 Client.

6.3. Intellectual property rights granted to the Client as complementary to the access to the Application

EVALANDGO Software consents to the Client, for the use of the Application exclusively, the right to use the Catalog of questionnaires, during the Agreement, for the whole world.

ARTICLE 7. BUSINESS REFERENCES AND NON-SOLICITATION OF STAFF

EVALANDGO Software is authorised by the client to use its elements to enable EVALANDGO Software to identify it as a commercial reference for its commercial activity, such as the corporate name, commercial name, the logo, the group and activity, or any other reference information.
Each Party undertakes, for the duration of the Agreement, not to discuss, solicit or hire the collaborators of the other Party involved in the implementation of the Service or using the Service, except with the written consent of the latter and exclusion made cases where such employees would spontaneously respond to a general offer of employment for a recruitment campaign initiated in good faith by one of the Parties in the normal course of business and which is not theirs specifically intended.
In the event of a breach of this prohibition, the offender will be required to immediately pay to the other Party, as a penalty clause, a sum compensation equal to six (6) months of the last monthly gross salary of the a solicited or hired person, plus all costs of recruiting a replacement. If it is not an employee but a subcontractor, the fixed compensation will be 30 000 € without taxes.

ARTICLE 8. 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 9. 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 10. RESPONSIBILITY

10.1 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 Client 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 Client’s network structure, the computer hardware and the programs used by the Client.

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 Client 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 Client 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.

10.2 Client responsibility

The Client 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.

ARTICLE 11. ACCESS TO THE APPLICATION

For the use of the Application, the Client is invited to create his Professional 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 client is solely responsible for their use.
Any use of the identifiers is irrefragably deemed to constitute a use of the Application by the Client, which he declares to expressly accept.
The Client agrees to give access to the Application only to authorised members of its staff. The Customer must immediately warn of any unauthorised use of his identifiers or any breach of the confidentiality of his identifiers The account EVALANDGO Software is for one user. In case of multi-user accounts, every user has its own credentials to log in.

ARTICLE 12. DURATION

In case of online subscription, it is the Client that chooses the duration on the Subscription Page. The Contract is subscribed for a fixed term, it is tacitly renewable for an equivalent fixed term, unless the Contract is ended, via the Application, no later than the last day of the Contract.
In case of subscription via an accepted quote, the duration of the Contract is mentioned in the quote and is not renewable tacitly.

ARTICLE 13. SUSPENSION OF THE CONTRACT

The suspension of the Contract may occur together with the application of the dispute procedure referred to in Article 23 of the Contract.

13.1 Suspension of the Contract for unpaid invoices

In case of total or partial non-payment of an invoice within fifteen (15) days after the payment deadline, the client will receive a first reminder by EVALANDGO Software, via e-mail or mail.
If the non-payment persists, EVALANDGO Software will send, within thirty-five (35) days after the initial payment deadline, a second reminder by registered letter with acknowledgment of receipt or by electronic registered letter with acknowledgment of receipt.
If, at the end of a new period of twenty (20) days from this formal notice, the payment has not yet occurred, the Contract may be suspended by EVALANDGO Software.

13.2. Other cases of suspension of the Contract

EVALANDGO Software reserves the right to suspend, without refund or notice, the access to the Applicationand the Client will not have the possibility to claim any compensation, in case of breach of the provisions of Articles 5.2, 8.2 and 12 of the Agreement.

13.3. Consequence of the suspension of the contract

The suspension of the Contract entails:

✓ The suspension of access to the Application;
✓ The temporary suspension of the access of the Client to the Application, making any use of the Applicaiton impossible.

In case of suspension, EVALANDGO Software will notify the Client by notification within fifteen (15) days before the real suspension of access to the Application. During the suspension period, EVALANDGO Software will continues to invoice for the Application.
The suspension has no effect on the amount of the Subscription and on the termination of the duration of the Contract. At the same time, the process of amicable settlement of disputes may be implemented by the most diligent Party.

ARTICLE 14. TERMINATION – CONSEQUENCES OF TERMINATION

In case of non-performance by one of the parties of a contractual obligation, the other party will have to implement first the amicable settlement procedure, as referred in Article 23 of the Contract.
In case of failure of this procedure, the aggrieved Party shall be entitled to terminate the Contract, fifteen (15) days after formal notice to notify by Notification and remained unsuccessful even partially without prejudice to any damages and interests to which the injured Party could claim.
In the event of termination from EVALANDGO Software, the amounts paid by the Customer under the Contract will remain fully vested in EVALANDGO Software and the amounts remaining due will become due immediately on the date of termination.
At the end of the Contract for any reason, and particularly in the event of expiration in accordance with Article 12 of the Contract or termination in accordance with this article, the Client will lose their status as a client but will retain access to the Application as a Free User. The user will be able to create new questionnaires within the limits of the features available in the free version. However, the Surveys conducted, the Results, and the Reports can no longer be modified or viewed, even if they are not deleted from the account. This access will be governed solely by the provisions of the General Terms of Use.
Without any access to the Application for a period of 18 consecutive months, after the end of the Agreement, the Customer who becomes a Free User will lose all rights of access to the Application via his Evalandgo Account, as the account will be deleted.

ARTICLE 15. DATA PRIVACY

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 16. 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 Client will be able to oppose to the assignment because the information will be transmitted by the third party assignee to the Client by email.
The Client 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 Client 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 17. 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 18. MODIFICATIONS

Any modification of this agreement must be a written agreement in paper or digital form between the Client and EVALANDGO Software.
EVALANDGO Software reserves the right to modify the Terms of Service 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 Client via the Application.

ARTICLE 19. 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 20. 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 21. 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 22. PROCEDURE FOR THE AMICABLE SETTLEMENT OF DISPUTES – JURISDICTION OF COURTS

✓ The party who feels aggrieved will send a Notification to the other Party, specifying the subject of the dispute precisely and the proposed solutions, as mentioned in Article 56 of the French Code of Civil Procedure.
✓ After this Notification, the Parties will enter into negotiations to find an amicable solution to their dispute. These negotiations may not last more than 30 days from the date of the Notification, unless the Parties agree.
✓ Any proposal for a friendly resolution issued by one of the Parties during friendly discussions will not influence the latter and will stay confidential if, at the end of the procedure, the dispute will still be unsolved.

In case of a persistent disagreement 30 days after the notification provided, the friendly settlement procedure may be ended and the most diligent Party may refer the matter to the competent court.
In case of conciliation, the Parties undertake to sign a confidential transactional agreement.
Any dispute that may arise between the Parties in connection with the execution, interpretation or termination of this contract shall be brought before the competent courts of the jurisdiction of the Court of Appeal of Montpellier.

General terms of service EVALANDGO Software Consumers

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, towards clients having the title of consumers.
In accordance with Articles L. 111-1 and L. 111-4 of the French 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 informs the consumer about its identity, postal code, telephone, electronic contact details and activities, the features of the digital content and, if applicable, its interoperability, the existence and the methods of integration, safeguards and other contractual conditions in accordance with Articles R. 111-1 and R. 111-2 of the French Consumer Code.
Moreover, the Client 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, more specifically, through these General Terms and Conditions of Services.

ARTICLE 2. PRECONTRACTUAL INFORMATION – CLIENT ACCEPTANCE

The Customer acknowledges having being informed, before ordering and concluding the Contract, in a clear and understandable manner, about these General Conditions of Services and all the information listed in Article L.221-5 of the French Consumer Code, more specifically about the following points:

– the essential features of the Application;
– the price of Subscriptions and additional costs;
– information about the identity of EVALANDGO Software, its postal code, telephone and electronic contact details, and its activities, if they are not already shown in the context,
– the information about the legal and contractual guarantees and their methods of implementation,
– the functionality of the digital content and, if appropriate, its interoperability,
– the possibility of resorting to a conventional mediation in case of litigation.

By subscribing, the Client declares having read the Terms and Conditions and to have fully accepted them, without restriction or reservation. The subscription entails the payment of the price of the Subscription chosen, which is expressly recognised by the Customer.
The Customer renounces, in particular, to use any document contradictory to the Terms and Conditions, which could refer to EVALANDGO Software.
The Client acknowledges having the capacity required to use and purchase the services offered by EVALANDGO Software.

ARTICLE 3. OBJECT

The Client acknowledges having the capacity required to use and purchase the services offered by EVALANDGO Software.
EVALANDGO Software provides hosting and backup of the Application, Surveys, Data and Reports, maintenance and security, technical support and hotline.
EVALANDGO Software reserves the right to modify the Application, but to improve constantly.
The Contract refers to online services of software media without delivery.

ARTICLE 4. CONTRACTUAL DOCUMENTS AND TERMS OF CONCLUSION OF THE CONTRACT

4.1. CONTRACTUAL DOCUMENTS

The Contract includes the following contractual documents, organised in the following order of priority:

– The Particular conditions
– The General Conditions
– Annexes : Privacy Policy and Data protection Agreement (DPA)

4.2. SUBSCRIPTION TO THE APPLICATION

The subscription to the Application can be made via the Site or by accepting a quote from the EVALANDGO Software Sales Team.

4.2.1. Subscription via quote:

4.2.2. Online subscription:

EVALANDGO Software reserves the right to refuse any subscription of a Client with whom there is a dispute about the execution of a contract for the use of the Application.

ARTICLE 5. COMMITMENTS OF THE PARTIES

5.1. 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.
EEVALANDGO 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 the Client 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:

EVALANDGO Software warrants that it is the author or copyright owner of the Application. EVALANDGO Software therefore guarantees that the use to the Client of the Application within the framework of and in compliance with the Agreement does not in any way affect the rights of third parties.

5.2. Client’s Commitment

EVALANDGO Software has no tolerance for spam. As a result, while the User is on the App, it is forbidden:

EVALANDGO Software reserves the right to suspend the Agreement without notice if it considers that the User practices activities that do not comply with its ANTI-SPAM policy as described above.
The 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 Client 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 Client 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:

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, the Client who subscribed to the Application is obliged to :

ARTICLE 6. RIGHT OF WITHDRAWAL

Because of the nature of services provided, orders made by the Client have no right of withdrawal.
The contract is therefore definitively concluded upon the placing of the order by the Client according to the terms specified in these Terms and Conditions.

ARTICLE 7. ORDER – RATES – PAYMENT TERMS

– Via bank transfer,
– Via check.

In case of payment by check, it must belong to a bank domiciled in France or Monaco.
The cashing of the check is made upon receipt.
Payments made by the Client will be considered validated only after the real receipt of the amounts due by EVALANDGO Software.
For Clients who have subscribed to quotes, in case of late and delayed payments by the Client, sent after the date of the quote and after the date of payment appearing on the invoice, late penalties calculated at the annual rate of 5% of the amount inclusive of the price of the order, will be applied automatically to EVALANDGO Software, without any formality, nor prior notice.
Delayed payment will lead to the immediate payment of the whole amount owed by the Client, without prejudice to any other action that EVALANDGO Software would be entitled to bring against the Client.
Moreover, EVALANDGO Software reserves the right, in case of non-compliance with the terms of payment listed, to suspend or cancel the Subscription required by the Customer and/or to suspend the performance of its obligations.

ARTICLE 8. INTELLECTUAL PROPERTY

8.1 Client property

8.2 EVALANDGO Software Property

8.2.1 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 Client 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 Client 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 Client 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 Client in connection with the use of the Application.

8.2.2. EVALANDGO Software grants to the Client, who is accepting, a non-exclusive access right to the Application, for the duration provided for in Article 13 of the Terms of Service.
The use by the Client of the Application must be made be coherent with their purpose and for their own needs.
This right of access is granted to the Client for strictly personal reasons and can neither be transferred nor transmitted to a third party for any reason.
This right of access is granted to the Client for strictly personal reasons and can neither be transferred nor transmitted to a third party for any reason.

8.2.3 Restrictions
The Client is cannot infringe the economic and moral rights of EVALANDGO Software on the Application and any additional elements.

8.3. Intellectual property rights granted to the Client as complementary to the access to the Application

EVALANDGO Software consents to the Client, for the use of the Application exclusively, the right to use the Catalog of questionnaires, during the Agreement, for the whole world.

ARTICLE 9. 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 10. COOPERATION OF THE PARTIES

ARTICLE 11. RESPONSIBILITY

11.1 EVALANDGO Software Responsibility

Moreover, EVALANDGO Software cannot guarantee that:

11.2 Client responsibility

The Client 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.

ARTICLE 12. ACCESS TO THE APPLICATION

For the use of the Application, the Client 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 Client is solely responsible for their use.
Any use of the identifiers is irrefragably deemed to constitute a use of the Application by the Client, which he declares to expressly accept.
The Client agrees to give access to the Application only to authorised members of its staff. The Customer must immediately warn of any unauthorised use of his identifiers or any breach of the confidentiality of his identifiers The account EVALANDGO Software is for one user. In case of multi-user accounts, every user has its own credentials to log in.

ARTICLE 13. DURATION

In case of online subscription, it is the Client that chooses the duration on the Subscription Page. The Contract is subscribed for a fixed term, it is tacitly renewable for an equivalent fixed term, unless the Contract is ended, via the Application, no later than the last day of the Contract.
According to article L 215-1 of the French Consumer Code, mentioned literally in his official translation:

“For service contracts concluded for a determined period with a tacit renewal clause, the professional service provider will notify the consumer in writing, by dedicated nominative letter or E-mail, at the earliest three months and at the latest one month before the end of the period allowing for rejection of the renewal, of the possibility of not renewing the contract which he concluded with a tacit renewal clause. This information, provided in clear and comprehensible terms, should mention the deadline for nonrenewal in a clearly visible box.
When this information is not sent to him in compliance with the provisions of the first paragraph, the consumer can terminate the contract free of charge at any time as of the renewal date.
When this information is not sent to him in compliance with the provisions of the first paragraph, the consumer can terminate the contract free of charge at any time as of the renewal date. Advances made after the last renewal date or, for contracts of indeterminate duration, after the date of transformation of the initial fixed-term contract, are in this case reimbursed within a period of thirty days as of the date of termination, with deduction of the sums that correspond to the fulfillment of the contract up to this point. The provisions of this article apply without prejudice to those which legally subject certain contracts to specific rules with regard to consumer information.”

Article L215-2 of the French Consumer Code mentions:

“ The provisions of this chapter are not applicable to operators of water and sanitation services.”

Similarly, under Article L215-3 of the French Consumer Code, it is specified:

“The provisions of this chapter are also applicable to contracts concluded between professionals and non-professionals.”

Article L241-3 of the Consumer Code specifies:

“When the professional does not make reimbursement by the terms specified in article L. 215-1, the sums due generate interest at the legal rate”

In case of subscription via an accepted quote, the duration of the Contract is mentioned in the quote and is not renewable tacitly.

ARTICLE 14. SUSPENSION OF THE CONTRACT

The suspension of the Contract may occur together with the application of the dispute procedure referred to in Article 23 of the Contract./br>
14.1 Suspension of the Contract for unpaid invoices

14.2. Other cases of suspension of the Contract

14.3. Consequence of the suspension of the contract

The suspension of the Contract entails:

✓ The suspension of access to the Application;
✓ The temporary suspension of the access of the Client to the Application, making any use of the Applicaiton impossible.

ARTICLE 15. TERMINATION – CONSEQUENCES OF TERMINATION

In case of non-performance by one of the parties of a contractual obligation, the other party will have to implement first the amicable settlement procedure, as referred in Article 23 of the Contract.
In case of failure of this procedure, the aggrieved Party shall be entitled to terminate the Contract, fifteen (15) days after formal notice to notify by Notification and remained unsuccessful even partially without prejudice to any damages and interests to which the injured Party could claim.
In the event of termination from EVALANDGO Software, the amounts paid by the Customer under the Contract will remain fully vested in EVALANDGO Software and the amounts remaining due will become due immediately on the date of termination.
At the end of the Contract for any reason, and particularly in the event of expiration in accordance with Article 12 of the Contract or termination in accordance with this article, the Client will lose their status as a client but will retain access to the Application as a Free User. The user will be able to create new questionnaires within the limits of the features available in the free version. However, the Surveys conducted, the Results, and the Reports can no longer be modified or viewed, even if they are not deleted from the account. This access will be governed solely by the provisions of the General Terms of Use.
Without any access to the Application for a period of 18 consecutive months, after the end of the Agreement, the Customer who becomes a Client will lose all rights of access to the Application via his Evalandgo Account, as the account will be deleted.

ARTICLE 16. DATA PRIVACY

ARTICLE 17. SHARING OF THE CONTRACT – SUBCONTRACTING

ARTICLE 18. TOLERANCES

ARTICLE 19. MODIFICATIONS

ARTICLE 20. FORCE MAJEURE

ARTICLE 21. PARTIAL INVALIDITY

ARTICLE 22. APPLICABLE RIGHT. LANGUAGE OF THE CONTRACT

ARTICLE 23. 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 Client, will be submitted to the competent courts under common law conditions.
In case of dispute, the Client 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).

–Definitions–
Subscription: Type of contractual option chosen by the Customer, specifying the features available, the duration of the Contract and the associated invoiced amount

Annual subscription: Subscription having the duration of one year

Monthly subscription: Subscription having the duration of one month

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 Client during the Contract, worldwide, and if necessary, customizable

Client: Contracting legal entity with EVALANDGO Software, whose identification data is mentioned in the Subscription Page

Evalandgo account: Online space dedicated to the Users, where he can access via his ID, within which he can register his Data, and from which he can benefit from the features of the Application and view or download his data, questionnaires, reports and results

TOS: Contractual provisions set out above, prior to the Annexes

Special subscription conditions: Contractual provisions applicable between Users and EVALANDGO Software

Contract: Contract concluded between the Client 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

Quote: Document edited by EVALANDGO Software for Clients willing to subscribe without using the Subscription Page in order to benefit from special services, additional services, or payment terms

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 Client 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 Client regarding the use or interruptions of the Application, either by mail or by phone

Login: E-mail address provided by the Client when creating the Evalandgo Professional Account or later modified

Subscription page: Web page accessible via the Site, allowing to subscribe to the Application, on which the Client has to mention his ID data and specify a access to the Application

Trial period: Time during which the Client 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 ; www.evalandgo.com/pt ; www.evalandgo.com/de; www.evalandgo.com/it

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