The purpose of these General Terms and Conditions (hereinafter "GTC") is to set out the general terms and conditions under which P&W Enterprise, LLC (hereinafter the "Service Provider") provides a Professional Client (hereinafter the "Client") with software services and, possibly, customized services (jointly defined as the "Services") described in the Order.
The Contract that governs the contractual relations between the Parties (hereinafter the "Contract"), consists of the contractual documents listed below to the exclusion of any other document, in descending order: - The Order. This Order may be customized following a request by the Client or a standard Order placed online from the https://www.ForecasterLab.com/ website. - Any Special Conditions (SC) (in particular those relating to the processing of personal data) - These General Terms and Conditions (GTC) and its appendices
The contractual documents are mutually explanatory. However, in the event of contradiction between them, the higher-ranking document shall prevail. The Client waives the application of its own general terms and conditions. The stipulations provided for in the Client's invoices or purchase orders may not under any circumstances derogate from the stipulations of the contractual documents mentioned above.
The Contract constitutes the full and sole agreement of the Parties on the provisions that are the subject of the Contract. Consequently, as of its entry into force, it replaces any contract, agreement, exchange of letters or verbal agreement and other negotiations, including previous versions of the contract that may have taken place between the Parties prior to the date of entry into force of the Contract and having the same purpose, unless the Client expressly disagrees by registered letter with acknowledgement of receipt within 15 days of the communication of this Contract to the latter. The Contract may only be modified by means of a new Order.
The Contract may be formed electronically or otherwise.
For customized Orders, the Client undertakes, during a prior information phase, to communicate to the Service Provider in writing its statement of needs and any useful, precise, complete, and unequivocal information required to determine the specificities of its needs.
The Client declares that it has been fully informed of the Services, which are the subject of the Contract, and acknowledges that the Service Provider has been at the Client's entire disposal to inform it of everything that was essential according to the needs expressed by the Client.
The Service Provider shall, applying its specific know-how, respond to the Client"s request, which considers that it does not have the capacity to provide the subscribed Services in-house itself.
The Contract is deemed to have been drawn up by the Service Provider upon receipt of the Order signed by the Client.
The fact that the Client has the Service Provider perform the Services specified in the Order constitutes full and complete acceptance of the said Order and the contractual documents in all their terms and conditions.
It is stipulated that the Parties intend to derogate from the provisions of Articles 1127-1 and 1127-2 of the Civil Code on contracts concluded electronically.
Users are informed that their account and the data that they have entered into the Solution will be automatically deleted by the Service Provider at the end of a period of 3 months from the start of the trial period, if they fail to place an Order within this period.
- Orders placed at the end of the trial period for one of the Premium, Business, or Pro versions of the Solution
At the end of the free trial period, Users are invited to place an Order from the website for one of the Premium, Business, or Pro versions of the Solution.
If a Client places an order it must accept these General Terms and Conditions by ticking the box on the site provided for this purpose.
Final acceptance of the Order is carried out by clicking on the "Confirm" button to access payment .
Confirmation of the order is presented on the website after the Client's final acceptance thereof. The order confirmation includes a summary of the contents of the Order, the order number, date and time, the payment method used, the detailed amount of the order and the Client"s invoicing address. Confirmation of the Order is sent to the Client by e-mail at the same time.
At any time, Clients may access details of their Orders placed via their Client account or by sending an email to the Service Provider at the following address: email@example.com
Orders and invoices are available from the Solution.
The Service Provider reserves the right to block an order, particularly in the event of suspected or proven fraud (compromised usernames, etc.).
Clients may, depending on the package chosen, create several User accounts intended for any individual of their choice and configure the Solution themselves.
For the performance of the Contract, terms and expressions with an initial capital letter shall be understood as follows:
The Software Services provided by the Service Provider enable the Client, Beneficiaries and Users to access and use the Solution throughout the Contract. The Software Services subscribed by the Client are those referred to in the Order.
These Software Services include:
The Client undertakes to implement the following technical resources under its responsibility before implementing the Solution:
When the Client has access to the Solution in administrator (or super administrator or Credit Manager) mode, it assumes full responsibility for managing User accounts and usernames and passwords.
The Client, and the Users for which the Client is the guarantor, undertake to keep usernames and passwords strictly
The Client undertakes to immediately inform the Service Provider of any fraudulent use and any risk of such use so that the Service Provider may take and necessary measures.
The Client undertakes to remove all access to an Employee User immediately upon termination of his/her employment contract or to a Service Provider User immediately at the end of his/her assignment.
Interconnection links may be established between the Service Provider's Solution and the Client's IT system. In this respect, the Client undertakes to take all appropriate security measures in respect of the following aspects:
The Service Provider reserves the right to modify the Software Services during the term of the Contract (e.g. Solution functionalities, hosting conditions, security, availability, maintenance, etc.).
In particular, the Service Provider reserves the right to modify the characteristics of its technical infrastructures and the choice of its sub-contractor suppliers at any time. These modifications must, however, make it possible to offer services at least equivalent to those provided at the time the Contract was signed.
The Client shall be informed by post of any modification likely to substantially degrade or reduce the Software Services, at least thirty (30) working days before the implementation of the modification. If these conditions are unacceptable to the Client, it will have the option of terminating the Contract by sending a registered letter with acknowledgement of receipt, within thirty (30) working days of notification of the modification. Termination of the Contract shall take effect at the end of a period of notice of three (3) months from receipt of this letter. The Service Provider will then reimburse the Client pro rata any amounts paid in advance corresponding to the current annual period.
The financial conditions relating to the Services are defined in the Order.
The price of the subscription is fixed and includes all the Software Services subscribed to by the Client.
All prices are given in USD, excluding costs and taxes plus Sales or other tax applicable at the rate in force on the invoice date.
Under no circumstances may the Client offset, reduce or change prices or suspend payment in advance.
The price of a subscription is payable in advance, based on the chosen subscription length, by bank transfer, Credit card or direct debit.
For Orders placed online, the Client may pay by bank card, PayPal or bank transfer. Payments are based on the chosen subscription period.
Unless otherwise indicated in the Order, prices may be revised at the Service Provider"s discretion, annually on the anniversary date of the subscription.
For online Orders, the Contract shall enter into force on the date of the Order. At the end of the initial commitment period, the subscription will be automatically extended for periods of the same duration as its initial duration
The Parties acknowledge the confidential nature of all information exchanged between them during the negotiation of the Contract and during its performance as well as the information and data on the basis of which the Services are performed and undertake to keep them confidential.
Consequently, the Parties expressly undertake:
Each Party undertakes to make every effort to ensure compliance with this confidentiality obligation by all of its staff or any other person assigned to the performance of the contract.
This confidentiality obligation does not apply to that part of the information which is:
This confidentiality obligation shall apply to each Party throughout the term of the Contract and shall continue for a period of five years from the end of the Contract for any reason whatsoever.
The Service Provider holds the intellectual property rights enabling it to grant the Client, Beneficiaries and Users the right to use the Solution in accordance with this Contract.
The Client acknowledges that the Contract does not confer on it any property right over these elements. The provision of the Solution under the conditions set out in the Contract shall not be construed as the assignment of any intellectual property right to the benefit of the Client, Beneficiaries and Users, within the meaning of the French Intellectual Property Code.
Thus, the right of access and use granted under this Contract is exclusive of any transfer of intellectual property rights.
The Service Provider grants the Client, Beneficiaries and Users, throughout the term of the Contract and worldwide, a non-exclusive right of access and use, which is non-exclusive, non-assignable and non-transferable.
Under no circumstances may the Client make the Solution available to a third party other than a Beneficiary or an authorized User, and is strictly prohibited from any other use outside the scope of this Contract, in particular any reproduction, adaptation, modification, representation, translation, arrangement, distribution, decompilation, without this list being exhaustive.
The Client undertakes not to infringe in any way whatsoever the Service Provider's rights to the Solution and not to carry out acts likely to result in the counterfeiting of all or part of any element or component of the Solution.
In any event, the Client shall remain liable to the Service Provider for any breach of the foregoing commitments, whether as a result of their actions, of the actions of a Beneficiary, a User or the actions of their employees and/or service providers.
The Service Provider may be required to use pre-existing software for which it has obtained the rights necessary for their use.
In particular, the Client is informed that the Solution may use "free" or "open source" modules or libraries.
The Client is informed that the licenses relating to these modules or libraries may contain pure and simple exclusions from all guarantees. In this case, the Client accepts that the Service Provider may not give the Client any more guarantees than the Service Provider itself holds from the licenses for these modules or libraries. The Service Provider therefore excludes any warranty relating to so-called "free" or "open source" modules or libraries for which the licenses may contain a warranty exclusion.
The intellectual property elements made available to the Service Provider by the Client and Beneficiaries for the performance of the Services remain the exclusive property of the Client and Beneficiaries in accordance with the intellectual property code. The Service Provider shall only have a personal, non-assignable and non-transferable right of use over the said intellectual property elements, solely for the Services covered by the Contract and for the sole duration thereof.
The Service Provider shall therefore refrain from using these intellectual property elements outside the purpose of the Contract and after the end of the Contract for any reason whatsoever.
The Client undertakes to take personal responsibility for any claim and/or procedure of any kind brought against the Service Provider by any third party and which is linked, directly or indirectly, to the use of these elements and shall bear any amount that may be claimed from the Service Provider in this respect.
The Service Provider shall hold the Client harmless against any action for infringement and shall be responsible, subject to the provisions of the following paragraphs, for all damages and interest which the Client may be ordered to pay by a court decision that has become final and having as its sole basis the proof of infringement of the Solution on French territory. This guarantee is subject to the condition (i) that the Client shall have immediately notified, in writing, the action for infringement or the declaration which preceded this action and (ii) that the Service Provider has been able to defend its own interests and those of the Client and, to this end, that the Client has collaborated faithfully with said defense by providing all the elements, information and assistance necessary to successfully conduct such a defense.
In the event that the use of the Solution were to be prohibited as a result of an action for infringement or were to result, at the sole initiative of the Service Provider, from a transaction signed with the claimant for infringement, the Service Provider shall endeavor, at its choice and expense (i) either to obtain the right for the Client to continue using the Solution, or (ii) to modify the Solution subject of the concession in order to avoid said infringement, or (iii) to assume responsibility for the amount of any damages.
The Service Provider shall not incur any liability if the alleged infringement is based on a modification of the Solution carried out by others than the Service Provider, in the use of the Solution with software or other elements not approved by the Service Provider or in the use of the Solution in a way that does not comply with the specifications and instructions given by the Service Provider.
Personal Data: means any information relating to an identified or identifiable Person. An identifiable Person is one who can be identified directly or indirectly, in particular by reference to a username or to one or more elements specific to his or her identity.
Processing: means any operation or series of operations relating to Personal Data, such as collection, recording, organization, storage, adaptation or modification, retrieval, consultation, use, communication by transmission, dissemination or any other form of provision, reconciliation or interconnection, as well as locking, erasure or destruction, regardless of whether this operation is carried out automatically or not.
Data Controller: means the Party that, alone or jointly, determines the purposes and means of any Processing. In the context of the performance of the Contract and with regard to the Service Provider, the Data Controller is here the Client and/or the Beneficiary.
Processor: means any natural or legal person who processes Personal Data on behalf of the Client who is the Data Controller. In the context of the performance of the Contract, the Processor is here the Service Provider.
Data Subject(s): means any natural person whose Personal Data may be subject to Processing by the Processor under the Contract.
In the context of this contract, the Client and/or the Beneficiary is the Data Controller and, as such, alone defines the purposes and means of processing.
P2B Solutions is a Data Processor and may only act on Personal Data on the written instructions of the Client. The Processor undertakes to offer the same guarantees of protection of personal data as the Client, with regard to the Data Subjects.
Any Processing carried out under this initial Contract has the following characteristics:
Nature of the Processing:
Purposes of the Processing implemented:
The processing instructions are:
Categories of Personal Data processed:
The Client"s Client Data:
Categories of Data Subjects:
The Client and/or Beneficiary, in their capacity as Controller, undertake to comply with all the obligations incumbent upon them pursuant to the Regulations on the Protection of Personal Data, such as in particular the obligations to inform Data Subjects, any requests for authorization, the existence of the legal bases for Processing, etc. The Controller shall hold the Processor harmless from any conviction or financial consequence to which they may be exposed as a result of non-compliance with its obligations.
The Service Provider, in its capacity as Processor, undertakes to scrupulously comply with all its obligations under the Regulations on the Protection of Personal Data. The Service Provider"s obligations are set out below.
Compliance with processing instructions
Use of serial processing
Obligation to help and assist the Processor
Obligation to inform
Obligation of confidentiality
Notification of Personal Data Breach
What happens to the Data at the end of the Contract
Records of processing operations
The Client gives the Service Provider general authorization to sub-contract all or part of the services, in particular to any service provider of its choice. In any event, the Service Provider shall remain liable vis-"-vis the Client for the proper performance of the contract and the services by the processor it uses. The Service Provider is also authorized to assign the Contract to any assignee of its choice. The assignment shall be notified to the Client. In the event of assignment of this Contract by the Service Provider, the Client agrees that the Service Provider shall not be jointly and severally liable for the proper performance of the Contract by the assignee. Any assignment, subrogation, substitution or other form of transmission of this Contract by the Client is prohibited without the Service Provider"s prior written consent.
In the event of a breach by either of the Parties of any one of its obligations under the Contract, the other Party shall be authorized, thirty (30) days after formal notice sent by registered letter with acknowledgement of receipt that has remained without effect, to terminate this Contract ipso jure by registered letter with acknowledgement of receipt without prejudice to any damages it may claim as a result of the breaches invoked. At the end of the Contract, for whatever reason, the Client will no longer have access to the Solution and will no longer benefit from the Software Services. The Client shall have a period of 3 months from the end of the Contract to recover or delete the data it has entered into the Solution. If the data are not returned within this period, they will be permanently deleted by the Service Provider. The Contract does not include reversibility services at the end of the Contract or in the event of early termination.
The Service Provider may only be held liable to the Client for any direct damage that may be attributed to it under the Services entrusted to it under this Contract. The Service Provider may not be held liable for any indirect loss, such as loss of turnover, loss of profit, loss of orders, loss of data, loss of opportunity, damage to its image or any other special damage or events beyond its control or any fact not attributable to it. The Service Provider is only responsible for the tasks expressly assigned to it in this Contract. The Service Provider shall not be held liable in any way whatsoever for any use made by the Client of the results of the Services, nor for the content of the data or documents provided to it by the Client and/or integrated into the Solution. Under no circumstances may the Service Provider be held liable in the event of: Failure, negligence, omission or default by the Client, Beneficiaries or User that would constitute the exclusive cause of the occurrence of the damage, accidental loss or destruction of data by the Client, a Beneficiary or a User; Any negligence or omission by a third party other than a subcontractor over which the Service Provider has no power of control and monitoring, Force majeure as defined in the article "Force majeure".
Furthermore, the Service Provider may not be held liable in particular for interruptions to services or damages related to: abnormal or fraudulent use by the Client, a Beneficiary or a User or a third party requiring the service to be stopped for security reasons; misuse of the Solution and Services by the Client, a Beneficiary or a User; fraudulent intrusion or maintenance by a third party on the Solution, or unlawful extraction of data, despite the implementation of security measures in accordance with current technical data; the nature and content of the hosted information and data; more generally, the Service Provider may not under any circumstances be held liable for data, information, results or analyses from a third party; an interruption in the supply of electricity or transmission lines caused by public or private operators; the operation of the Internet network not implemented by the Service Provider; the unsuitability of the Solution to the hardware or software used by the Client.
The Service Provider"s liability under this Contract shall be time-barred one (1) year from the event of loss.
The Service Provider is the holder of an insurance policy in respect of Professional Liability, covering damage caused in the exercise of its professional activity. A certificate of this insurance policy will be provided to the Client upon request.
The Parties intend to lay down rules on the evidence admissible between them in the event of a dispute and on its probative value. The Parties agree that, in the event of a dispute, the following elements and procedures shall be admissible in court and shall be evidence of the data and facts contained therein as well as the signatures and authentication procedures expressed therein:
The Client undertakes not to dispute the admissibility, validity or probative force of the aforementioned elements.
Neither Party shall assume the risks of unforeseen events. The Parties agree that if a change in circumstances that was unforeseeable at the time the Contract was concluded makes the performance of the Contract excessively onerous for one of the Parties, they shall meet within fifteen (15) days of the written request made by one of the Parties in order to negotiate a revision of the Contract. During these negotiations, each Party shall continue to perform its contractual obligations. If the Parties fail to reach an agreement within thirty (30) days of the first meeting between the Parties, the Parties shall agree on terms of amicable termination of the Contract.
Neither Party may be held liable for any delay or failure in the performance of any of its obligations under this Contract, if said delay or failure is due to the occurrence of a force majeure event. Notwithstanding the cases of force majeure, by express agreement between the Parties, are considered as cases of force majeure: acts of terrorism; wars; total or partial strikes and lock-outs by third-party companies impacting the service, bad weather, epidemics, blocking of traffic routes, means of transport or supply for any reason whatsoever, earthquake, fire, storm, flood, water damage; governmental or legal restrictions, legal or regulatory changes to forms of marketing; blocking of telecommunications. The Party wishing to invoke a case of force majeure must notify the other Party by registered letter with acknowledgement of receipt as soon as it becomes aware of such an event. As soon as the effects resulting from the force majeure event invoked have disappeared, the Party affected shall immediately inform the other Party by any means and shall immediately resume the performance of its obligation. In the event of persistence of the effects resulting from the event constituting a case of force majeure for more than fifteen (15) days, the Parties agree that this Contract may be terminated ipso jure at the initiative of the first Party to take action by registered letter with acknowledgement of receipt, without this affecting the terms of payment of the services performed.
The Client authorizes the Service Provider to cite and reproduce its name and logo as a commercial reference. No waiver by either Party of any of its rights may be tacitly granted. A waiver must be in writing in order to be binding on a Party. Such waiver shall not constitute a waiver of said rights in the future. In the event that one of the clauses of the Contract is declared null and void, unwritten, unenforceable or irrelevant, this clause shall be deemed unwritten and shall not affect the validity or continuation of the Contract as a whole, unless it is a clause of a determining nature for one of the Parties on the date of signature of the Contract. In this case, the Parties shall negotiate in good faith with a view to replacing this clause with a valid clause reflecting their initial intention. Any registered letter with acknowledgement of receipt shall be deemed to have been received and shall take effect on the date of its first presentation. For the performance of this Contract, each Party elects domicile at the addresses indicated above. In the event of a change of domicile, the Party concerned must inform the other in writing as soon as possible.
The validity of this Contract and any other questions or disputes relating to its interpretation, performance or termination shall be governed Colorado law. The Parties undertake to devote their best efforts to the amicable resolution of all questions or disputes that may divide them, prior to the referral to the court designated below.