Luxembourg
GENERAL TERMS AND CONDITIONS FOR SERVICES
Captivea Luxembourg - Version 3 - Last Updated 16/05/2024
Captivea Luxembourg 's general terms and conditions of services (“Terms”)
CAPTIVEA provides consulting services, software integration, training, and custom software development for professionals in the field of management software and corporate information systems. The purpose of these General Conditions is to define the terms and conditions for the provision and delivery of services, licensing of software, add-on modules, and the Software Solution made available to the Client.
PART A - COMMON PROVISIONS
ARTICLE 1 – DEFINITIONS
In these General Conditions, each of the expressions mentioned below shall have the meaning given in its definition, namely:
Client: the legal entity that has entered into a contract with CAPTIVEA.
Contract: the contract consists of the Estimate approved by the Client and these General Conditions. In case of contradiction, the provisions of the Estimate shall prevail over the General Conditions.
Estimate: CAPTIVEA's commercial proposal describing the services provided and their prices, as well as, if applicable, the Software or Software Solution licensed, the duration of the license, and its price.
Specific Developments: computer developments developed by CAPTIVEA in addition to the Software and Add-on Modules to specifically meet the needs of the Client.
Data: data of any kind, including the personal data of Users, collected and processed by the Software, as well as data generated by the Software;
Study: IT consulting services, such as audit, needs analysis, or assistance in drafting specifications.
Editor: a company that publishes and markets the Software(s), and of which CAPTIVEA is a reseller.
Installation: provision of the Software to the Client by creating one or more user accesses. Software Integration: installation service at the Client's location or in hosted mode, of Software or Software Solution licensed to the Client.
Software(s): the software(s) published by a third-party company, distributed and/or integrated by CAPTIVEA at the Client's site, in the form of object code and associated documentation.
Go-Live: the actual use of the Software by the Client in its working environment, starting from or via the input of real data, for the completion of actual work.
Add-on Modules: computer programs developed or distributed by CAPTIVEA, designed to be provided to multiple users, for the same application or function, to complement the basic functionalities of the Software, as detailed in the Estimate.
Acceptance: Client's validation of the Software Installation, either expressly or tacitly through the Go-Live of the Software.
Software Solution: a software package integrating Software, Add-on Modules, and Specific Developments.
Information System: the set of hardware, software, applications, databases, and telecommunication networks of the Client.
Services: all the services offered by CAPTIVEA, including Study, Framing, Audit, Training, Software Integration, Data Migration, Support, Maintenance, Specific Developments, and any other services related to the Client's Information System.
User: a natural person, under the authority of the Client, authorized to use the Software.
ARTICLE 2 – FORMATION OF THE CONTRACT
Every Service is the subject of an Estimate or a prior commercial proposal. Only the prices and information appearing on this estimate or commercial proposal have contractual value, to the exclusion of prices and information in catalogs, brochures, and the CAPTIVEA website, which are provided purely for indicative purposes.
The Contract is deemed formed as soon as CAPTIVEA becomes aware of the acceptance of the Estimate or the commercial proposal by the Client, by postal mail sent to the registered office of CAPTIVEA, or by email.
In case of acceptance by email, the Contract will only be formed from the date of sending the acknowledgment of receipt or reading of the Client's email by CAPTIVEA.
The acceptance of the estimate or the commercial proposal can also be formalized by a certified electronic signature procedure (such as Docusign or another certified electronic signature provider) in accordance with Article 1322-1 of the Luxembourg Civil Code.
Unless otherwise stipulated in the Estimate or commercial proposal, the Contract comes into effect on the day of its formation.
Once the Contract is formed, it cannot be canceled. However, in the event of unilateral cancellation of the Contract by the Client, for any reason whatsoever, the amounts due under the Contract will be immediately payable, and the Client must settle them within a maximum period of thirty (30) days upon presentation of the invoice.
ARTICLE 3 – DURATION
For Software licenses, the Contract takes the form of a subscription, concluded for an initial period of one (1) year from the Installation of the Software, unless a longer commitment is mentioned in the Estimate.
This Contract is renewable by tacit renewal at maturity for periods of one (1) year unless one of the parties informs the other of its intention to terminate it by registered letter with acknowledgment of receipt, with a minimum notice period of three (3) months before the initial or renewal maturity. Any modification during this last quarter will result in a flat-rate management fee of €200 excluding tax per subscription.
The Contract ends when all the Services have been performed by CAPTIVEA and paid for by the Client.
In any case, the Contract terminates on the date of its termination or non-renewal, for any reason whatsoever.
ARTICLE 4 – ACCEPTANCE AND AMENDMENT OF GENERAL CONDITIONS
In the absence of a specific and written stipulation on the Estimate or the commercial proposal, deviating in whole or in part from these General Conditions, any acceptance by the Client of an Estimate or commercial proposal from CAPTIVEA shall constitute full and complete acceptance by the Client of these General Conditions, excluding all other documents issued by the Client, provided that the latter had the opportunity to acquaint itself with them.
CAPTIVEA reserves the right to modify these General Conditions at any time.
The changes to the General Conditions will apply to ongoing contracts, after a period of thirty (30) days from the email sending of these modifications to the Client. If the Client refuses these modifications, the Client may terminate the Contract by sending a registered letter with acknowledgment of receipt to CAPTIVEA during the notice period. In this case, the provisions of Article 17: Consequences of the End of the Contract will apply.
ARTICLE 5 – PERFORMANCE OF SERVICES
In the execution of its Services, CAPTIVEA is not bound by any obligation of result.
CAPTIVEA's liability is subject to the provisions of the paragraph in Part A - Article 8.
Article 5.1 – Definition of the Contractual Scope
CAPTIVEA does not commit to a predefined contractual scope but only to a volume of time, aiming to best cover the Client's needs. CAPTIVEA may provide the Client with an overall project estimate so that the Client has information allowing for the broadest possible vision of the project; however, this is not a fixed commitment.
Article 5.2 – Analysis Phase
Before carrying out the Services, CAPTIVEA may propose to conduct an analysis phase to define the functional or technical scope to be covered, the Client's Specifications, and ensure the alignment between the Client's needs and the selected software solution or Service. This analysis phase will be included in the initial Estimate or commercial proposal with a commitment of means. If applicable, the Client accepts that this phase may lead CAPTIVEA to reassess the overall estimate and the volume of time required for the performance of the Service.
ARTICLE 6 – CLIENT'S COMMITMENTS
The Client undertakes to actively collaborate in the successful completion of the Services by providing CAPTIVEA with timely, accurate, and sincere information, as well as all necessary data and documents to advance the project and meet the deadlines specified in the Contract. The Client will report any elements that may compromise the successful execution of the services. They commit to informing CAPTIVEA of any changes regarding the provided data and will be solely responsible for any potential malfunctions.
If the services chosen by the Client are to be carried out from the Client's premises and/or with the Client's equipment, the Client undertakes to ensure CAPTIVEA's free access to its premises and/or equipment and to provide the strictly necessary means for the proper execution of the services.
The Client agrees to comply with all technical prerequisites necessary for the installation and operation of the Software and the Software Solution. Technical prerequisites communicated by CAPTIVEA are provided for informational purposes only and are subject to change by software editors and providers of the Client's Information System.
The Client will designate a person capable of answering functional and/or technical questions from CAPTIVEA, who will be the preferred contact for CAPTIVEA to monitor the project's progress and its use following the delivery of the Software Solution.
To respond knowledgeably to questions from our teams, the designated person must also have received training on the basic functioning of the Software Solution. In case of absence, the Client will promptly designate a replacement contact to avoid hindering the project's progress and will request CAPTIVEA to provide additional basic training for the new contact.
Unless otherwise decided by the Client, this designated person will also be the sole point of contact for CAPTIVEA for Support purposes.
ARTICLE 7 – CAPTIVEA'S COMMITMENTS
CAPTIVEA undertakes to dedicate the time and human, material, and technical resources necessary for the completion of the Services ordered by the Client, and to execute them in a professional manner and in accordance with the best practices, subject to the Client's proper fulfillment of its own obligations.
In the absence of specific stipulations, the documentation for the Software or Software Solution and Add-on Modules is that available on the Editor's website, in English, or in French when available.
CAPTIVEA also commits to regularly inform the Client about the progress of the Services and any difficulties of which it is aware, including their consequences, especially in terms of time and/or cost that may result from them.
ARTICLE 8 – LIABILITY – INSURANCE
It is expressly agreed between the parties that CAPTIVEA is only bound by an obligation of means.
Consequently, CAPTIVEA's liability can only be incurred for proven fault on its part as demonstrated by the Client.
Expressly, CAPTIVEA cannot be held liable for indirect damages that the Client may suffer, including but not limited to commercial loss, loss of profit, damage to brand image, data loss, or others that may result from the performance of the Services, or the use of the Software, inability to use the Software, or the use of results obtained through the use of the Software. Any action taken against the Client by a third party constitutes indirect damage.
Notwithstanding the above, it is expressly agreed between the parties that CAPTIVEA's liability, in the case of proven fault by the Client, is expressly limited to the amount of sums paid by the Client under the Contract in the twelve (12) months preceding the occurrence of the damage; even in the event of termination or cancellation of the Contract.
CAPTIVEA holds professional liability insurance. CAPTIVEA undertakes to maintain these guarantees throughout the duration of this contract and to provide proof upon the Client's request.
ARTICLE 9 – DEADLINE
The delivery deadlines and dates indicated in the Estimate or commercial proposal are provided purely for indicative purposes, unless otherwise stated. Therefore, delays in delivery attributable to CAPTIVEA cannot lead to any penalties or compensation, nor justify a revision of the price or cancellation or refusal of the order by the Client.
In the event that the delay is attributable to the Client (modification requests, waiting for elements, etc.) or to a supplier of CAPTIVEA, the delivery date will be rescheduled accordingly based on CAPTIVEA's availability, without CAPTIVEA being held responsible for this delay.
If the delay exceeds thirty (30) days after an unsuccessful reminder, CAPTIVEA reserves the right to terminate the contract, with the Client remaining liable for all invoices and orders placed before termination.
ARTICLE 10 – FINANCIAL CONDITIONS
Article 10.1 – Rates
The rates for the Services are expressed in euros, net and excluding all taxes and duties.
However, if the price of Software Licenses is based on a supplier price outside the eurozone, its price may be expressed in foreign currencies, in which case it will be converted into euros based on the exchange rate applicable on the day of billing of the License (or its renewal).
Annual fees for license management, specified in the Estimate or commercial proposal, may be applied to the Client.
Article 10.2 – Rate Revision
CAPTIVEA reserves the right to modify its prices at any time to reflect tariff developments from its own suppliers (Editor) or to reflect the evolution of its internal costs.
In cases covered by Articles 10.2.1 and 10.2.2, the Client will have the option to reject this modification and terminate the Contract without penalty by sending CAPTIVEA a registered letter with acknowledgment of receipt within a period of thirty (30) days from the sending of these new rates by CAPTIVEA.
In the absence of termination within the aforementioned period, the rate changes will automatically become applicable to the ongoing Contract.
In case of termination, the provisions of Article 17 apply.
Article 10.3 – Invoice Delivery
Invoices are sent in electronic format; however, the Client can request delivery in paper format. This request may be subject to administrative fees.
Article 10.4 – Payment
Unless otherwise agreed between the parties, the Client undertakes to settle the total amount of the services outlined in the estimate or commercial proposal upon order validation.
Services provided as subscriptions are invoiced annually at the beginning of the period. Unless otherwise agreed between the parties, invoices are payable upon receipt.
Payment is made by bank transfer or by check payable to CAPTIVEA, with all bank charges (including rejection fees) incurred by a financial intermediary or paid by CAPTIVEA being invoiced to the Client.
In case of total or partial late payment, for any reason whatsoever, a late payment penalty will be applied at the contractual rate of 12% per year from their due date, without the need for a reminder in accordance with the law of April 18, 2004, on payment terms and late interest.
Additionally, the Client will also be subject to a lump-sum indemnity for recovery costs, the amount of which is set at €40. However, in the event that the recovery costs incurred exceed €40, CAPTIVEA may request additional compensation, upon justification.
In case of license renewal, these late payment penalties will apply in addition to those applied by the Editor and automatically re-invoiced to the client (see Part B, Article 2).
Article 10.5 – Execution and Payment of Services
The Client will be supported by the pre-purchase of a "time booklet" allowing them to acquire a reserve of available time from CAPTIVEA for the completion of the various services detailed in the estimate or commercial proposal.
Time booklet are invoiced and payable in full in advance upon receipt of the order, unless otherwise agreed. The validity period of time booklet is two (2) years from the date of order.
The applicable hourly rate is the one in force at the time of the order or renewal of the time booklet.
All services performed under the "Time booklet" mode, excluding functional support, result in an estimate of the time consumed, according to the procedure indicated in the estimate or commercial proposal.
All requests requiring, according to CAPTIVEA's estimate, a maximum of four (4) hours of intervention are executed without prior validation by the Client. Requests are estimated for informational purposes and must be validated beforehand by the Client, with the actual intervention time being deducted from the time booklet upon completion. For any non-validated request, the qualification time is deducted in real time.
The time spent on a request is counted in hourly increments of fifteen (15) minutes.
When the contracted time booklet is depleted, and in the absence of having renewed an additional time booklet with our services in advance to ensure continuity of service to the Client, all additional or remaining requests from the Client will be processed and invoiced based on the hourly rate in force on the day of completion by our teams (As of January 1, 2021: €135/hour). The invoice will be issued bi-monthly and payable upon receipt of the invoice.
Services feasible under the "Time booklet" mode are services. They do not include any travel expenses.
To ensure the best possible conditions for CAPTIVEA's support, the client agrees to hold a minimum quarterly meeting of thirty (30) minutes between their CAPTIVEA contact person and themselves.
In case of termination of the Contract, regardless of the reason, the remaining time balance acquired through the time booklet is non-refundable.
Article 10.6 - Security deposit
For monthly invoiced services on a deferred payment basis:
1. Security deposit for monthly invoiced services:
For monthly invoiced services, a security deposit will be required from the client.
The security deposit must be equivalent to at least 100% of the estimated total amount for the month.
The payment of the security deposit will be executed through any means of payment accepted by the company.
2. Adjustment of the security deposit:
If the invoiced amount during the month exceeds the initial security deposit, the security deposit will be revised. This revision aims to ensure that the security deposit will be equal to at least 100% of the total monthly invoice amount.
3. Billing of the security deposit and regular monthly billing:
At the beginning of the service period, the security deposit will be invoiced to the client. Subsequently, the monthly billing system will come into effect.
4. At the end of the contract:
Upon termination of the contract, the refund of the security deposit will be made by allocating service hours equivalent to the initial amount of the guarantee.
The request for the refund of the deposited guarantee must be initiated within 12 months following the termination to be considered valid. Beyond this period, the request will be deemed void and cannot be accepted.
ARTICLE 11 – CONFIDENTIALITY
The Parties undertake not to disclose the confidential information of the other party that they may become aware of in the course of the execution of CAPTIVEA's services and/or for the application of these provisions. Thus, the Parties commit to strictly observe this confidentiality and not to disclose to anyone any non-public information of which they become aware, both during the term of the contract and after its expiration. In particular, the Client undertakes not to communicate to any third party any or all of the information gathered about CAPTIVEA's software solutions, and CAPTIVEA undertakes not to disclose the Client's confidential information and to use it only as strictly necessary for the provision of services to the Client. The terms and conditions of the relationship between CAPTIVEA and the Client are notably confidential.
Information that is publicly available at the time of disclosure or subsequently becomes available without a breach by either Party of its confidentiality obligation or is legitimately obtained from a third party without a violation of a confidentiality agreement concerning that information, is not considered confidential.
ARTICLE 12 – NON-SOLICITATION
During the entire term of the Contract and for a period of one (1) year from the End of the Contract, for any reason, the Client undertakes not to solicit, hire, or employ, directly or indirectly, any employee or former employee of CAPTIVEA during the term of the Contract, whether or not they have participated in the execution of the Contract. In the event of a violation of this clause, the Client shall pay CAPTIVEA compensation equal to one year of the gross loaded salary (including employer contributions) of the employee concerned.
ARTICLE 13 – COMMERCIAL REFERENCES
By accepting these General Conditions and during the term of the Contract, the Client expressly authorizes CAPTIVEA to mention it as a reference client and to reproduce its logo or trademark on its website and commercial documents, in accordance with the model provided by the Client to ensure reproduction in compliance with the Client's graphic charter. Similarly, the Client may claim to be a client of CAPTIVEA.
ARTICLE 14 – FORCE MAJEURE
The performance of the obligations incumbent on each of the parties under these terms will be suspended in the event of an occurrence of force majeure within the meaning of Articles 1147 and 1148 of the Luxembourg Civil Code and the jurisprudence of Luxembourg courts. By express agreement, events considered as force majeure include the malfunction, restriction, or interruption of electrical or telecommunication networks, internet networks, and notably any breakdowns or service interruptions at the providers or subcontractors of CAPTIVEA. In this case, the party affected by force majeure will promptly and in writing inform the other party of its duration and foreseeable consequences. If the force majeure event were to exceed sixty (60) days from the notification mentioned above, the affected party shall have the option to terminate the Contract automatically and without compensation, without further formality than sending the other party a registered letter with acknowledgment of receipt.
ARTICLE 15 – ASSIGNMENT
The benefits of the Contract may not be assigned or transferred by the Client to a third party without the prior written consent of CAPTIVEA. However, CAPTIVEA may, at any time, assign its rights and obligations under the Contract, provided it informs the Client. In such a case, CAPTIVEA will be released from any obligation related to the Contract, both for the obligations already performed and those related to the future execution of the Contract by the assignee.
ARTICLE 16 – EARLY TERMINATION
In the event of a breach by either party of its essential obligations (namely, default in payment or failure to comply with the collaboration obligation for the Client), and in the absence of remedy within one (1) month after formal notice by registered letter with acknowledgment of receipt notifying the existence of the breach, the other party may terminate the contract automatically by registered letter with acknowledgment of receipt.
Furthermore, in the event of early termination for the Client's breach, CAPTIVEA reserves the right to apply a penalty to the Client set at 10% of the price excluding taxes of the remaining amount to be paid, without prejudice to any damages that CAPTIVEA may additionally claim to compensate for the suffered harm.
In the case of unilateral cancellation of the Contract by the Client, the amounts due under the Contract will be immediately payable, and the Client must settle them within a maximum period of thirty (30) days upon presentation of the invoice.
ARTICLE 17 – CONSEQUENCES OF CONTRACT TERMINATION
In the event of the termination of the Contract for any reason, the Client must:
- Immediately cease using the Software,
- Return to CAPTIVEA all elements constituting the Software and any copies thereof within ten (10) days following termination or expiration,
- Pay all amounts due to CAPTIVEA within fifteen (15) days.
At the end of the Contract, regardless of the cause, the fees earned for the current contractual period will not be refundable, and the remaining time acquired within the framework of time booklets will not be reimbursed.
Upon termination of the Contract, CAPTIVEA undertakes to return or destroy all elements or documents belonging to the Client, which CAPTIVEA may have received in the course of performing the Services, and to retain no copies.
ARTICLE 18 – SEVERABILITY OF CONTRACTUAL PROVISIONS
Any event affecting, for any reason whatsoever, the existence of a contractual stipulation, including deletion, impossibility of execution, or invalidation by a court decision, separable from the other provisions herein, does not affect the obligatory nature of the execution by the parties of the other stipulations in these general conditions.
ARTICLE 19 – NON-WAIVER
In the event that either party does not enforce or claim the enforcement by the other party of any provision of these terms, this conduct shall not be interpreted as a waiver of such enforcement and shall not affect the respective rights of the parties.
ARTICLE 20 – APPLICABLE LAW – DISPUTES
These general conditions are subject to Luxembourg law. In the event of a dispute and in the absence of an amicable agreement, exclusive jurisdiction is granted to the Luxembourg district court, notwithstanding a plurality of defendants or third-party proceedings, even for emergency or conservatory procedures, in summary proceedings or by application.
PART B – SPECIFIC CONDITIONS FOR SOFTWARE LICENSES AND ADDITIONAL MODULES
ARTICLE 1 – ACCEPTANCE OF THE EDITOR'S SOFTWARE LICENSE
Any Software Integration service results in the granting of Software Licenses, the quantity of which is defined in the Contract by the Client. The Client must validate the terms of the Software's license with the editor before ordering licenses through CAPTIVEA. The Client commits to using the Software in accordance with the terms and provisions of the end-user license agreement. Furthermore, the effectiveness of the Contract is subject to the Editor's acceptance of the license order for the Client.
ARTICLE 2 – EDITOR'S COMMERCIAL POLICY
Editors with whom CAPTIVEA is partnered are free to establish and modify their commercial policy without notice.
Consequently, CAPTIVEA reserves the right to pass on these modifications, regardless of their nature, to ongoing Contracts with the Client, without prior notice.
In particular, but not limited to, CAPTIVEA reserves the right to:
- Modify license prices in case of changes in the Editor's prices,
- Automatically invoice late fees applied by the editor in case of delayed payment (payment after the start of the invoiced period)
- Terminate Maintenance or Support for versions no longer supported by the Editor,
- Terminate the Contract if it no longer meets the eligibility conditions set by the Editor.
CAPTIVEA will notify the Client as soon as it becomes aware of this change in the commercial policy,and will inform them of the effective date of the change or, if applicable, the termination. This termination shall not give rise to any compensation or refund of amounts paid under the Contract by CAPTIVEA.
Furthermore, in the event that the formed Contract has not yet come into effect, and a change in the Editor's commercial policy, occurring between the formation of the Contract and its entry into force, would prevent the Contract from being executed, CAPTIVEA may, without cost or indemnity, cancel said Contract.
ARTICLE 3 – DURATION – TERMINATION
Any License contract not terminated within the deadlines and according to the forms specified in Article A.3, whether it be a total or partial termination, will be invoiced to the Client, regardless of their actual use of the Software.
ARTICLE 4 – CLIENT'S RESPONSIBILITY
The Client acknowledges that they have verified the suitability of the Software for their needs. Therefore, CAPTIVEA cannot be held responsible for the inadequacy of the Software it provides for specific purposes that the Client may contemplate or pursue. In any case, the use of the Software is under the sole control, direction, and responsibility of the Client. Any use of the results obtained through the implementation of the Software is solely within the competence and responsibility of the Client.
The Client agrees to actively collaborate with CAPTIVEA so that it can fulfill its commitments to Software Editors or Additional Module providers, and the Licenses can be executed under the conditions specified in the Quote.
ARTICLE 5 – NUMBER OF LICENSES
The subscription agreement specifies the number of user positions (resulting in the creation of "accounts"), which determines the License fees.
The Client undertakes to use the Software or Software Solution for the number of declared users in the Contract, in accordance with the definition provided in the end-user license agreement.
In case of addition, modification, or deletion of user accounts, the Client agrees to inform CAPTIVEA within 48 hours, specifying that the deletion of an account during the subscription period will not result in any reduction in the applicable subscription amount or any refund for already paid License fees. During the three (3) months preceding the renewal, an administrative fee of a flat amount of two hundred euros (€200) will be applied for any deletion of user accounts.
ARTICLE 6 – PRICE – PAYMENT
The price of Software Licenses may be based on a supplier price outside the euro zone; in this case, it may be expressed in foreign currencies, and it will be converted into euros based on the applicable exchange rate on the day of invoicing (or renewal) of the License.
Annual fees for license management may apply to the Client.
Unless otherwise specified in the Quote or commercial proposal, the Licenses for the Software or Software Solution are payable annually in advance, upon presentation of the invoice.
PART C - COMMON CONDITIONS FOR SOFTWARE INTEGRATION SERVICE AND CUSTOM DEVELOPMENT SERVICE
ARTICLE 1 – BASIC FUNCTIONING
The solution proposed by CAPTIVEA and chosen by the Client is built upon existing Software or Software Solution.
Customizations requested must be achievable through the features offered as standard by the chosen Software Solution (configurations, development tools provided by the system).
The possibilities, usage, and methodologies that can be implemented depend on the capabilities of the Software. This allows for better scalability, consistency across different functionalities, and skill development across the entire system.
Moreover, the Client understands and agrees that the presentation of information, data lists, and other elements of the user interface on the screens will remain as offered in standard by the Software or Software Solution.
If applicable, document generation will be based on the customization possibilities provided by the software, drawing inspiration, where possible, from the documents provided by the Client (logo, color codes).
ARTICLE 2 – DATA MIGRATION
If specified in the contract, data migration services from the old software involve importing data by implementing a simple column-matching script from the file provided by the Client to the database of the new Software Solution.
The extraction of data from the old system and its communication to our teams will be the responsibility of the Client in the form of flat files usable through standard office software (Microsoft Office) or a MySQL relational database.
Unless otherwise stated in the Quote, data migration services do not include a data cleaning, qualification, modification, deduplication, or formatting phase. The client is responsible for providing a comprehensive, clean data file containing correctly formatted information ready to be inserted into the new software.
The Client understands and agrees that in cases of delivering incorrect or incomplete data files to CAPTIVEA for migration, data migration services will be recharged by CAPTIVEA to account for the additional workload of analysis and implementation.
ARTICLE 3 – PRELIMINARY TESTING
The Client may request that tests be conducted before the Installation of the Software or Software Solution. This service will be specified in the Quote.
If applicable, tests will be conducted and executed by CAPTIVEA internally, before the acceptance testing outlined in Article 3, under normal usage conditions, to ensure the proper functioning of the Software Solution as detailed in the Commercial Proposal.
CAPTIVEA undertakes to correct any anomalies and failures identified following these tests, allocating the necessary time for this task within a time log previously approved by the client.
ARTICLE 4 – SOFTWARE OR SOFTWARE SOLUTION DELIVERY
If the Client proceeds with the installation of the Software or Software Solution themselves, they must have made any necessary adjustments to accommodate the Software or Software Solution within their Information System, following the specifications and/or technical hardware and software prerequisites indicated by the Editors (on their websites).
If the installation is carried out by CAPTIVEA, the Client must also comply with any additional prerequisites communicated by CAPTIVEA.
In all cases, the Client must have previously made any necessary adjustments to establish links and gateways with other business applications within the Information System (Telephony Server, Document Management System, ERP, CRM, Internal Database, etc.).
ARTICLE 5 – DELIVERY AND INSTALLATION – ACCEPTANCE TESTING
The delivery and installation of the Software Solution will be conducted as specified in the Contract. Upon delivery of the Software Solution by CAPTIVEA, the Client will ensure its conformity to the expressed needs.
ARTICLE 6 – SUSPENSION OF SERVICES
In the event that the Client fails in their collaboration obligation by not timely responding to CAPTIVEA's requests for the proper execution of the Services, CAPTIVEA may, after a final written request to the Client to provide the requested elements within a maximum period of 30 days, decide to immediately suspend the Contract. This suspension will take effect on the day of its notification to the Client and will remain effective until the requested elements or information are provided. In the absence of a response from the Client within a period of three (3) months from the notification of the suspension, CAPTIVEA may terminate the Contract without further notice. The provisions of Article A.16, paragraph 2, shall apply.
ARTICLE 7 – INTELLECTUAL PROPERTY
When the Contract involves the provision to the Client of Software or Additional Modules published by a Editor, the Client is granted a right to use this Software or these Additional Modules, within the limits and conditions of the final license agreement proposed by the editor, with the ownership of said Software and Modules remaining with the Editor.
When the scope of the service includes Additional Modules (developed by CAPTIVEA) or the creation of Specific Developments, unless otherwise specified in the Quote, these remain the intellectual property of CAPTIVEA, and these General Conditions do not constitute any assignment of exploitation rights to the Client.
Herewith, CAPTIVEA grants the Client a personal, non-transferable, and non-exclusive license to use the Additional Modules and Specific Developments, solely for the operation of the Software Solution, for the authorized number of user accounts, and subject to payment of the licenses as defined in the Contract.
Therefore, the Client shall refrain from making any modification, distribution, adaptation, or commercial exploitation of the Software Solution, including the Additional Modules and Specific Developments created by CAPTIVEA.
In the event that the rights to the Specific Developments have been assigned to the Client, this assignment will only be effective upon the complete payment by the Client of said Developments. Furthermore, CAPTIVEA reserves the right to use the insights gained from studies and/or developments entrusted to it by the Client and to undertake developments for third parties, using elements similar to those it developed at the Client's request. In any case, CAPTIVEA remains the sole owner of the methods, tools, and know-how used in the context of its services.
ARTICLE 8 – SERVICE WARRANTY
CAPTIVEA does not guarantee that the Software or Software Solution is free of defects. CAPTIVEA also offers a maintenance contract, which may take the form of a time log, covering the core of the Software or Software Solution.
The Client will inform CAPTIVEA of any failure by submitting a request within CAPTIVEA's Client space, to which access will be provided to the Client's designated contact person.
Based on the received information and the details it contains, CAPTIVEA may:
- Provide the Client, by email or phone, with a solution to remedy the failure;
- Conduct a remote reproduction test with the Client;
- Report the failure to the Editor when it concerns the Software and the Client has an ongoing maintenance contract;
- Decide on any other solution it deems appropriate to the circumstances.
The costs incurred by implementing this warranty will be the sole responsibility of the Client.
If the Client does not want to commission CAPTIVEA, a request can be escalated to the Editor's support according to the terms and conditions of the Maintenance contract subscribed to in the Quote with the Editor of the Software Solution. In the event that the Client's request requires intervention by the Editor, it will be processed under the conditions and deadlines provided by the Editor at the end of its own warranty. In particular, it may require the installation of a fix or an update to the Software Solution, as recommended by the Editor.
PART D - SPECIFIC CONDITIONS FOR MAINTENANCE AND SUPPORT
ARTICLE 1 – DEFINITIONS
Non-blocking Anomaly: any minor or major operational anomaly allowing the partial or complete use of functionalities, even if done through a workaround procedure.
Blocking Anomaly: any operational anomaly making it impossible to use all or part of the functionalities of the Software.
Corrective Maintenance: correction of major and minor anomalies in the Software or Software Solution.
Support: assistance with the use of the Software or Software Solution.
Editor Maintenance: management of the interface with software editors in case of anomalies in the core of the software.
ARTICLE 2 – CORRECTIVE MAINTENANCE AND SUPPORT
The Client may subscribe to a Maintenance Contract which will be formalized with a time log, starting in accordance with the date indicated by said log.
CAPTIVEA will provide Corrective Maintenance services for the Software or Software Solution, as well as Support following the procedure outlined in Article 3.
CAPTIVEA may, at its discretion, propose workaround solutions, correct non-blocking Anomalies by sending patches, or escalate a request to the support of the Editor according to the terms and conditions of the contract subscribed to in the Quote or the commercial proposal with the Editor of the Software Solution.
In the event that the Client's request requires intervention by the Editor, it will be processed under the conditions and deadlines provided by the Editor at the end of its own warranty. In particular, it may require the installation of a fix or an update to the Software or Software Solution recommended by the Editor.
CAPTIVEA cannot be held responsible for a response deemed late to a support or maintenance request, or for its inability to resolve an anomaly notified by the Client, as long as it has implemented all necessary means, especially with the Editor of the relevant Software, to resolve this malfunction.
ARTICLE 3 – PROCEDURE
Requests for Support and Corrective Maintenance must be exclusively submitted through CAPTIVEA's technical platform, on the Client's personal space. Requests should be centralized and addressed solely by the technical contact specified in Part A - Article 6. Requests are received and processed from Monday to Friday, from 9:00 AM to 12:00 PM and from 2:00 PM to 5:00 PM at +352 20 33 41 42, excluding legal holidays and periods of company closure or specific agreement between the parties. They will be prioritized and processed by CAPTIVEA based on their degrees of urgency. The contact postal address is 5 Avenue du Swing, L-4367 BELVAUX, Luxembourg. The contact email address is: [email protected]
ARTICLE 4 – EVOLVING MAINTENANCE
Considering the services already provided to adapt the software to the Client's needs, it is expressly specified that updates and evolutions of the Software are not included in Corrective Maintenance, Managed Services, or the Warranty. Any installation of an update or evolution will be subject to invoicing as a separate Service.
ARTICLE 5 – EXCLUSIONS
CAPTIVEA is released from any liability regarding its obligation for maintenance and support on Anomalies resulting from:
- Inadequacy of User workstation specifications, including memory capacity, disk space, or any computer peripherals necessary for the proper functioning of the Software as specified in the contract.
- Malfunctions related to third-party software (other than the Software) installed on User workstations.
- Failure or issue resulting from any intervention or manipulation carried out by the Client and/or a third party on the workstations that would affect the proper functioning of the Software.
- In general, any intervention by a third party not authorized by CAPTIVEA on the Software or Solution.
Part E - Sale of point-of-sale equipment by CAPTIVEA
- CAPTIVEA proposed various models of digital and applicative equipment for financial transactions to its customers (hereinafter referred to as "the Equipment"). This section establishes the terms of ordering, delivery, and payment for the Equipment offered by CAPTIVEA.
Any other document communicated by the Client shall not be binding on CAPTIVEA concerning the sale of the Equipment. - The prices of the Equipment will be communicated to the Client in a catalogue. The communicated prices are exclusive of taxes and shipping costs.
CAPTIVEA reserves the right to unilaterally modify the prices of the Equipment based on pricing adjustments made by the supplier. The Client will be informed of any price changes before placing an order. - The Client shall place orders with CAPTIVEA by issuing a written purchase order. All orders placed are firm and definitive. As such, no return of equipment will be accepted.
- Payment for orders shall be made using any payment method accepted by CAPTIVEA. The full payment shall be made upon ordering the Equipment.
- The entire digital and applicative equipment proposed by CAPTIVEA is warranted according to the terms established by the supplier.
CAPTIVEA shall not be liable for the application of the warranty on the Equipment, which shall be the exclusive responsibility of the supplier. However, in the event of an anomaly covered by the supplier's warranty, CAPTIVEA will facilitate direct communication between the client and the supplier for their management.
Any claim or warranty request regarding the Equipment shall be directly addressed to the supplier. For the entire duration of the warranty, the supplier will be to the Customer’s site within D+1 working day from the sending of the request.
Every Client is required to inspect the delivered Equipment upon their arrival and to make, if necessary, customary reservations within a period of 7 working days, failing which the liability of CAPTIVEA and the supplier shall be discharged. - To the fullest extent permitted by applicable law, CAPTIVEA disclaims all liability for direct, indirect, incidental, special, consequential, or punitive damages, including, but not limited to, loss of profits, revenue, data, or use, resulting from the use or inability to use the provided Equipment.
In no event shall CAPTIVEA's total liability to the Client, whether under this section or in connection with it, exceed the total amount paid by the Client for the relevant Equipment.
- Definitions
- Direct damages: Immediate damages resulting from a specific event.
- Indirect damages: Damages resulting indirectly from the initial event.
- Incidental damages: Damages directly related to the initial event, but not its main consequence.
- Special damages: Unusual or unforeseen damages resulting from the initial event.
- Consequential damages: Damages occurring as a direct result of the initial event, but at a later time.
- Punitive damages: Damages imposed as punishment for wrongful or negligent behavior, aimed at discouraging the repetition of wrongful behavior.