PREAMBLE
Optimal RH is a HR software solution published by the company SO RH NC that allows for the dematerialization and decentralization of many tasks related to Human Resources in the company. Optimal RH is a SaaS (Software as a Service) solution, distributed in New Caledonia by the company SKAZY, which offers a wide range of features, being scalable and user-friendly. There are different modules to provide a tailored experience, adapted to each company: in the sections Leave and Absences, which is the very foundation of the solution, it is possible to add modules for Attendance, Expense Reports, Careers, Scheduling, ...
Optimal RH is accessible 24/7, on computer, tablet, and mobile.
DEFINITIONS
The Company: The Company Skazy,
Simplified Joint Stock Company (S.A.S.) with a capital of 600,000 XPF, registered in the Trade and Companies Register of Nouméa under number 732 206, with its registered office located at 7bis rue Gambetta - 98800 Nouméa, legally represented by Mr. Hatem BELLAGI, duly authorized for the purpose of these.
Employees: users of the Services specifically developed by SO RH NC for the management of Human Resources and any other person registered as an Employee.
Purchase Order: refers to the contract or any other document with contractual value, signed by the Client or subscribed online in order to order the provision of Services from the Company, and its possible subsequent amendments.
Contract: refers to the entirety consisting of these General Terms and Conditions and the Purchase Order.
Incident: The Incident is an event that is not part of the normal functioning of the Client’s Service and which causes, or may cause, a disruption and/or interruption of the Service.
Day: day included in the calendar of French working days.
Working Hours: Hours between 8 am and 4 pm from Monday to Friday (GMT New Caledonia).
Platform: IT environment enabling the management and/or use of the Services.
GDPR: Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 (“General Data Protection Regulation”). Furthermore, when used in these General Conditions and their appendices, the terms “personal data”, “processing”, “data subject”, “controller” and “processor” have the meaning given to them in the GDPR.
Services: The ensemble of services provided by the Company for the benefit of the Client, as provided for in the Contract.
Websites: The ensemble of websites published by SO RH NC and accessible on the internet, including the site optimal-rh.com.
APPLICATION, PURPOSE AND ENFORCEABILITY OF THE GTC
The GTC aim to define the rights and obligations of the Parties within the framework of signing a Purchase Order or the online sale of Services. They constitute the unique foundation of the business relationship. The Client is therefore deemed to accept them without reservation.
The GTC apply to any order of Services from the Company and prevail over any other document, especially over any general purchasing conditions of the Client.
The Contract expresses the entirety of the obligations of the Parties. No other technical, advertising, or commercial document of any kind, nor any correspondence prior to the signing of the Contract, shall create any obligations under the said Contract.
The online GTC (accessible on the Company’s extranet) prevail over the printed GTC. In case of contradiction between the GTC and the Purchase Order, the GTC shall prevail, unless otherwise specified as defined in Article 23 hereof.
The Company reserves the right to modify these GTC at any time without directly informing the Client, who is responsible for regularly consulting the online GTC to review the GTC currently in effect.
In case of modification of the GTC, the applicable GTC are those in effect on the date of the conclusion of the Contract, of which a dated copy may be provided upon request to anyone who makes the request.
These GTC are applicable from March 1, 2024.
These GTC are written in English and French. In case of contradiction between the English version of these GTC and their French version, the French version prevails.
SIGNING FOR SERVICES / PURCHASE ORDER
The Client subscribes to the Services from the online catalog, by completing and validating the Purchase Order online or by sending to the Company the printed Purchase Order, duly completed with the required information and signed.
The Client declares at this occasion that he has full legal capacity to subscribe to the Services offered by the Platform.
Subscriptions are nominative and valid only for the number of declared users and cannot be shared within an organization.
The Client also expressly agrees to these GTC, as well as the General Conditions of Use (GCU) of SO RH NC, by clicking in the designated place on the site optimal-rh.com or by checking the box provided for this purpose on the paper order form.
COMMUNICATION BETWEEN THE PARTIES
The Company commits to set up a secure tool that will allow the exchange of information (including confidential information) between the Parties. The Client has access to this extranet through the codes provided to him by the Company upon opening the Services.
The training of the Client in the use of the procedures and tools made available to him will take place through electronic documentation provided by the Company.
DURATION OF COMMITMENT
The Contract takes effect from the receipt by the Company of a signed Purchase Order from the Client. It is concluded for the duration indicated in the Purchase Order. The Contract is automatically renewable for equivalent periods, unless terminated by either party under the conditions described in the "Termination" article below.
HOSTING
The Client authorizes the Company to subcontract the hosting and maintenance, as applicable, of the Platform and all Data entrusted within the framework of Services.
OPENING OF THE SERVICE
The opening of the Service being subject to the Client providing information and documents requested by the Company, the Company cannot be held liable for any delay related to a fact of the Client. The Company may, in this case, start billing the subscription in accordance with the prices agreed upon in these presents, without the date of this billing being considered as the date of the opening of the Service.
OBLIGATIONS OF THE COMPANY
The Company commits to carry out the Services provided for in the Purchase Order which may include:
the provision of necessary information to the Client at the start of the Client's Service;
the establishment, maintenance, operation, and update of the Platform allowing access to the Services;
initial training for HR managers and/or the management line in the use of the application and the various subscribed modules so that these reference users can then train and respond to the requests of the Client's employees. If the Client wishes to benefit from additional training later, in-person or remotely, for example, in the context of integrating a new reference user, this ancillary service will be subject to additional billing based on the prices in effect on the day of the order.
support for a reference user of the Client with the provision of a ticketing interface containing the following information: Incidents occurred, actions taken for resolution, results of those actions; proposals for improvements arising from the above observations;
a hotline assistance (phone) for a reference user of the Client;
corrective maintenance (bug fixes, improvements to blocking elements in use, etc.);
evolutionary maintenance (upgrades, security updates, regulatory updates responding to new legal provisions, etc.);
minor functional evolutions;
the provision of a quality of service at least equal to that in effect in the market for a similar service. Consequently, it commits to comply with the following GTI and GTR depending on the severity of incidents that may occur during the contract duration:
Impact scale
SLA
Blocking
Anomaly rendering a feature inoperative or affecting data integrity
Eight (8) working hours GTI
Twenty-four (24) hours GTR
Major
An anomaly that prevents the normal operation of a feature, but does not affect data integrity.
24-hour GTI
Minor
Anomaly that does not impact the operational functioning of the application (ergonomics, comfort, etc.)
Five (5) business days
The durations of intervention are suspended as soon as the Company calls on the client to obtain information necessary for the management or resolution of the Incident. If the information held by the client is delayed in being transmitted, the waiting time will not be charged against the GTI or GTR timeline.
In order for the Client to access the Services, the Company provides the Client with confidential access codes by any means chosen by the latter. The Client may, for security measures and at a frequency they set, define new access codes.
CLIENT OBLIGATIONS
General obligations of the Client
The Client acknowledges having verified the adequacy of the Service with their needs and having received from the Company all the information and advice necessary to subscribe to this commitment with full knowledge of the facts.
The Client is fully aware that the Company's Services require collaboration between the Parties and commits to it. In this respect, they will transmit to the Company as quickly as possible all the information necessary for the execution of the Services.
The Client is fully and exclusively responsible for the passwords necessary for the use of the Services, both for preserving their confidentiality and for the use made of them by any person, with the clarification that the Company commits to communicate them only to the Client.
The Client acknowledges and accepts that access to the Platform granted to them is personal and non-transferable. The Client is not authorized to share their usernames and passwords with third parties, including within the company they represent.
Any action carried out via the Client's account will be deemed to have been performed by the Client, unless the Client has previously reported the relevant login as lost or stolen, thereby allowing a reasonable time for the Company to disable said login.
In the event of loss of an access code, the Client must, without delay, reset their password following the procedures in place.
The Client must inform the Company of the list of people who will receive access as well as the level of access. They are also responsible for keeping this list up to date in case of changes to the credentials they wish to allow.
Content provided by the Client
The content that the Client integrates into the Platform, regardless of when this integration occurs, is the sole responsibility of the Client.
The Client commits to ensuring that this information complies with all applicable regulations regarding the dissemination of information and services on the Internet, particularly with respect to intellectual property, privacy protection, the protection of minors on the Internet, and broadly, all provisions aimed at ensuring the protection of public order.
In the event of a dispute regarding any of these points, the Company, having neither knowledge nor control over the Client's content, will be deemed not to have knowingly made available to the public information or services contrary to public order.
As a result, the Client will assume sole responsibility and will incur all claims and/or procedures, regardless of their forms and nature, brought against the Company that are directly or indirectly related to the information posted online within the framework of the Services considered as a whole.
In the event that the Company is notified of the existence of clearly illegal content from the Client on the Platform, the Company will be obliged to promptly cease the access or online publication of this content, without the inability to access the Client's Service being considered a failure on the part of the Company.
HIRING - POACHING
The Company and the Client commit not to poach or hire any collaborator from the other party who has participated in the execution of the Contract, whether an employee or not, even if the solicitation was made by the collaborator during the entire duration of the contract and during the year following the cessation of contractual relations, unless both parties give their consent. The Parties also prohibit themselves from having this poaching carried out by one of their subsidiaries, subcontractors, or affiliated companies.
In the event that one of the two Parties does not respect this non-solicitation commitment, they irrevocably commit to pay the other, as a penalty clause, a liberating, flat, and definitive indemnity equal to one year of the salary of the poached collaborator, calculated based on the last month paid to the employee, including related social charges.
FINANCIAL TERMS
Price
The prices of the Services are indicated on the Purchase Order and are those in effect on the day the Contract is concluded. Prices are quoted in Pacific Francs (XPF/CFP), excluding taxes, and will be increased by the taxes, including TGC, in effect on the day of the order.
The price of the Services as indicated on the Purchase Order corresponds to a flat fee for the services referred to therein.
Reversibility assistance services
The Parties agree on the following financial provisions concerning the reversibility assistance services provided by the Company, upon the Client's request, including those related to the information transfer:
The costs related to the performance of the reversibility assistance as defined in Article 17.5 will be billed to the Client based on the time spent by the Company for their execution. The Company may present to the Client all relevant supporting documents, notwithstanding any other fees and penalties that the Client may owe at the time of activation of the reversibility;
If this is a termination of the present Contract due to a force majeure event, the expenses incurred by the Company in respect of reversibility will be billed to the Client at a rate of fifty percent (50%). In any case, the final cost borne by the Company for the reversibility operation is limited to the total costs of installation paid by the Client, as reflected on the initial Purchase Order, possibly modified by amendment, if applicable.
Billing
Installation and initialization costs will be billed on the day the contract is signed.
Subscription invoices are issued monthly, in advance, and are not subject to compensation or deductions.
Invoices for services charged on a time-spent basis (e.g.: ancillary services) are issued at the moment the intervention is carried out.
Invoices are payable net, without discount, within thirty (30) days from their date of issue.
Price modification(s)
The prices shown on the Purchase Order may be modified by the Company through an Amendment signed by the Parties in case of modification of the service perimeter by subscribing to new modules and/or changing the number of users.
If the Client modifies the service perimeter by exceeding the number of users provided for in the contract, the Company will notify them as soon as it becomes aware of it and without delay, with an amendment specifying the applicable prices for this new perimeter. In the absence of a response from the Client within 30 days from the receipt of the Amendment, the Company may automatically apply the rates corresponding to the new service perimeter that the Client is benefiting from. If the Client opposes these new rates, the service will be suspended under the conditions of Article 17.3 of these GTC until returning to the originally subscribed perimeter.
The prices shown on the Purchase Order may also be modified by the Company during the contract, respecting a notice period of two (2) months preceding the deadline for the price change, and notified to the Client by simple letter or email.
Unless the Client expresses refusal to the Company at least one (1) month before the date when payment of the new price is due, the Client will be deemed to have, by their silence, tacitly accepted the modification of the rates. The new rates will thus automatically apply from the end of the aforementioned two (2) months' notice period, without the need to formalize this modification by an amendment.
If the Client refuses the price modification, it is their responsibility to terminate their subscription within one (1) month prior to the deadline for the application of the new price.
Payment terms
Payments will be made by direct debit (SEPA), by credit cards, or by bank transfer. Any bank fees incurred by a transfer, even recurrent, remain entirely and exclusively the responsibility of the Client.
In the case of direct debit, the Client commits to sign a SEPA direct debit mandate valid for the duration of the Contract, based on the model that will be provided by the Company. In case of non-payments for any reason, the Client will be charged the bank fees incurred due to the refusal of payment by their bank.
Late payment
In case of non-payment of a single installment, the Client is automatically liable to the Company for a late penalty equal to three times the legal interest rate.
This penalty is calculated on the total amount including taxes of the sum owed and runs from the due date of the amount owed, without any prior notice being necessary.
In addition to the late fees, any amount not paid by its due date will automatically incur a flat fee of 5,000 XPF due for collection costs. When the collection costs incurred exceed this flat fee, the Company may request additional compensation, upon justification.
Furthermore, the Company reserves the right to suspend the Service without this suspension being considered a termination of the Contract on its part and retains the right to invoice the remaining balance of the subscription. The Service may be restored once all due amounts have been paid. The contract's expiration date will not be extended to cover the duration of the suspension of the Service. If the credit/debit card originally used for monthly payment expires before all monthly installment payments are made, the Client agrees to fill out a new payment form before the expiry date. Additionally, if the Client changes banks, they agree to provide the necessary information in order to fulfill their payment obligations.
Restoring the Client's Service will only be initiated upon receipt of payment of the amounts owed, to which will be added reactivation fees equivalent to all the costs of putting the system into production.
INTELLECTUAL PROPERTY – COUNTERFEITING
Use of documents available on the Company’s Platform
Unless otherwise stated, you are authorized to view and download documents contained on the Platform for personal, informational, commercial, and non-commercial purposes, provided that all copyright and other ownership notices contained in the original documents are included on any copies of said documents. You are not authorized to modify these documents in any way, nor to reproduce or display, exploit, post, transmit or publicly distribute or use said documents for public or commercial purposes.
The licensed software will remain the exclusive property of the Company, which reserves the author's rights in accordance with the law of July 3, 1985. The software is part of the Company's trade secrets and must be regarded by the Client as confidential information, whether or not it is patented, protected by copyright, or in any other way.
It cannot be assigned, contributed, or transferred without the consent of the PROVIDER.
The Client may not reproduce the software, in whole or in part, in any form. Except when necessary to obtain information necessary for the interoperability of the software, and provided the conditions listed in Article L.122-6-1, IV) of the Intellectual Property Code (CPI) established by Law No. 2017-24 of October 5, 2017, are met.
Furthermore, in accordance with Article L.122-6-1 of the aforementioned Intellectual Property Code, the Company exclusively reserves the right to correct errors in the software. However, the reproduction and modification acts provided for in Articles 1 and 2 of Article L.122-6 of the CPI may be carried out by the Client with express, written, and signed authorization from the Company.
If the Client transgresses the non-disclosure rule, they will be financially liable for the loss of profits incurred by the Company, without prejudice to any damages that the Company would be entitled to claim.
Warranty on the Company’s computer system
The Company declares that it has all the necessary rights to ensure the Services and grant the rights provided for herein to the Client.
The Company guarantees to the Client reimbursement of all expenses that they may incur in terms of damages, legal fees, lawyer fees, and expert fees, in the event that a final court or arbitration decision finds infringement or unlawful use of the Company’s computer system or in the use that the Client would make of the Platform based on the information provided by the Company.
The reimbursement of costs and damages provided in the framework of this warranty will be the sole and exclusive compensation that the Client may claim to the exclusion of any other sum or form of compensation. This warranty is subject to the liability cap provided in the "Liability" article.
This warranty will not apply in the event of misuse of the Service by the Client or use not in accordance with the indications provided by the Company.
To benefit from this warranty, the Client must notify the Company as soon as they become aware of this claim. The Client commits to conduct the dispute while preserving the Company’s interests as much as possible and keeping them informed of its progress.
Right of access to the tools used by the Company
It is understood that all tools necessary for the execution of the Services by the Company and made available to the Client in this context, which the Company has developed itself or for which it has a right of use, remain the exclusive property of the Company.
The Client is granted, during the duration of the Contract, and worldwide, a simple non-exclusive and non-transferable right to use these tools, strictly for the purposes of executing the Contract, and without the Client being able to intervene in any way on these tools.
COMMUNICATION
The Client allows the Company and SO RH NC to cite the Client's brand and to use the Client's logo, subject to compliance with the graphic charter, in its commercial communication as a commercial reference for the Services performed for the Client.
CONFIDENTIALITY
Each Party commits to keep confidential the information and documents concerning the other Party, of whatever nature and in whatever form, to which it may have had access before, during, or after the execution of the Contract and for six (6) months beyond the term of the Contract.
This confidentiality obligation does not impair the right that the Company reserves to share Clients' data with companies of the HBH group, of SO RH NC, or non-confidential data with business partners.
Both Parties will take all necessary measures regarding their staff, service providers, and subcontractors to ensure, under their responsibility, the secrecy and confidentiality of all confidential information and documents or considered such.
However, the Parties cannot be held responsible for any disclosure if the disclosed elements were in the public domain at the time of the disclosure, or if they had knowledge of them beforehand, or obtained them from third parties by legitimate means.
The Client also commits to taking all useful protective measures so that their access codes cannot be used by unauthorized third parties, specifying that the Client remains solely responsible for any inquiries and connections made with their access codes. The Company, for its part, commits to ensuring that its access codes remain confidential vis-à-vis third parties.
In the event that one of the Parties is legally compelled to disclose confidential information and documents transmitted to them by the other Party, they will notify the other Party as soon as possible.
LIABILITY
Liability of the Company
The Company's liability can only be engaged in the case of proven fault or negligence and is limited to direct and immediate damages, excluding any indirect damages.
Thus, the Company is in particular not liable for:
damages resulting from the Client's actions, those of their Employees, or from a third party or a force majeure event (see the "Force majeure" article below);
indirect damages such as those recognized by jurisprudence including financial or commercial losses, loss of clientele, brand image, chance, results, or operations. Indirect damages also include any actions directed against the Client by a third party to the Contract.
In the event that the liability of the Company is engaged, the total and cumulative amount of damages and other sums charged to it will be limited to the amount corresponding to the sums paid by the Client over the twelve (12) months prior to the occurrence of the damage in respect of the Services.
Company's commitments regarding security
The Company commits to regularly conduct a risk review to ensure the physical and logical security of its premises and its computer system. It commits to implementing all resources identified at the end of this study.
The Company will ensure that SO RH NC implements an antivirus protecting the documents transiting on the Platform.
In the event that a logical intrusion is detected, and due to the specificities of the Internet network and the evolving nature of computer material, the Company cannot be held responsible for any damages that may be caused to Clients. On the other hand, in this hypothesis, the Company commits to:
implementing all means at its disposal and conducting all appropriate tests, without any additional cost for the Client, if the logical intrusion was carried out via a Company element;
if the logical intrusion was carried out via a Client element, to implement means agreed upon with the Client, this intervention by the Company possibly involving additional billing corresponding to the means deployed, as well as billing for the time spent by the Company staff.
Company's exclusions of liability
The information provided on the Platform may contain factual or typographical errors or be incomplete or outdated. Information may be modified or updated without notice. The Company may make changes and/or improvements to the products and/or programs described on the Platform at any time and without notice. Unless otherwise explicitly included in a written contract stipulated between the Client and the Company, all documents provided on the Platform are provided "as is" and "as available." The Company makes no guarantees or representations of any kind, whether express, implied, or legal. The Company specifically disclaims any implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. The Company also disclaims any warranty regarding uninterrupted, secure access to our website or Services and hereby informs users that the operation of the site may be affected by numerous factors that are beyond our control.
The Company is not responsible for:
the information provided by its Clients;
the configuration and operation of the Client's internal network as well as the network connection belonging to and used by the Client to connect to the Platform;
the non-compliance of the solution with social regulations as defined in the GTC;
any errors, negligence, or omissions that might be committed by the Client, their staff, especially in case of insufficiency or inaccuracy of the information and/or documentation provided by them to the Company;
any actions directed by a third party against the Client except those initiated on the basis of counterfeiting in accordance with the "Intellectual Property – Counterfeiting" article of the Contract;
Contractual relationship
The parties will act at all times in complete independence from each other, without the Contract being deemed to create any subsidiary or joint venture, nor any bond of subordination or representation, agency or the like between them.
INSURANCE
The Company has taken out an insurance policy covering its professional civil liability for damages it may cause under this Contract. It commits to maintaining this insurance for the entire duration of the Contract.
At the Client's request, the Company must provide proof from its insurers regarding the amount and nature of the guarantees subscribed.
FORCE MAJEURE
The Party struck by a force majeure event must notify the other Party as soon as possible by any means.
Neither Party shall be held responsible towards the other in case of non-execution or delay in executing an obligation provided by the Contract due to the occurrence of a force majeure event typically recognized by the jurisprudence of the French Courts and Tribunals. However, if the force majeure event lasts more than thirty (30) consecutive calendar days, the Contract may be terminated as of right by either Party, this termination taking effect ten (10) days after sending a registered letter with acknowledgment of receipt.
TERMINATION
Contractual deadline
Each Party may terminate this Contract without compensation at the end of each contractual period as provided in the "Duration" article, by sending a registered letter, respecting a notice period of two (2) months.
The termination does not release you from any obligation to pay due under any subscription.
Termination for fault
Each Party may terminate the Contract by registered letter with acknowledgment of receipt, after sending a formal notice that remains unsuccessful for one (1) month, if the other Party commits a serious breach of one of its main obligations, without prejudice to any damages to which they may be entitled due to said breach.
Suspension of Service
In the event of non-performance by the Client of any of their obligations, the Company reserves the right, by informing the latter, to suspend all Services without notice, without this suspension giving rise to any compensation whatsoever.
The restoration of the Client's Service will be initiated upon the disappearance or repair of the cause of the suspension.
Deletion of the instance
At the end of the contractual relationship, the solution must be uninstalled. Only elements concerning the data and files, which are the responsibility of the Client, may be retained. The Client commits not to reinstall the solution by any means whatsoever.
Reversibility clause
At any time during the execution of the contract, or at the closure of the contractual relationship, the Company commits to assist the Client in carrying out an export of their data in a usable format. Alternatively, the establishment of technical interfaces allowing access to the data according to a documented and usable schema (API, pivot format, etc.) will occur.
The data thus exported will be immediately destroyed by the Company.
This performance will be subject to additional billing according to Article 10.2.
DATA PROCESSING
As data controller
The Client is informed that the Company is required to process personal data concerning, in particular, its managers, partners, and members of its Employees for the purposes of managing its clients and prospects and for the needs of the application of these GTC, namely for the provision of the Platform. For more information about the processing of personal data of the aforementioned concerned persons, the general conditions for using the Platform can be consulted.
As a subcontractor
The provision of Services presupposes the processing, by the Company, of personal data of Employees entered within the Platform. The Client instructs the Company to carry out the processing of personal data. To the extent that the information transmitted in the context of providing the Services contains personal data, the Client is the data controller of said data and the Company is the subcontractor since it acts on behalf of the Client and for its account on processes identified in Annex I of these GTC.
In this context, the processes carried out by the Company are governed by said Annex 1.
DISPUTE RESOLUTION AND APPLICABLE LAW
The Contract is governed in all its provisions by the applicable French law in New Caledonia. Any dispute of any nature arising from the conclusion, interpretation, execution, or termination of the Contract, and failing an amicable agreement within forty-five (45) days, will be expressly submitted to the Commercial Court of Nouméa, the Administrative Court of Nouméa in case of administrative litigation or to the High Court of Nouméa for any dispute regarding intellectual property notwithstanding plural defendants or claims for guarantees.
ASSIGNMENT/TRANSFER OF THE CONTRACT
The Company will have the possibility to transfer all or part of the rights and obligations resulting for it from the Contract to any existing or to be established subsidiary, as well as subsequently notably due to merger, division, partial asset contribution, or total or partial transfer of its business.
It is expressly agreed between the Parties that any change in the capital structure of the Company, including a change of control, will have no effect on the execution of the Contract.
The Client is not authorized to transfer all or part of their obligations under the Contract in any way without the prior, written, and express agreement of the Company.
MISCELLANEOUS PROVISIONS
Each Party acts for its own account and under its own responsibility.
Under no circumstances may one be considered an agent or representative of the other Party unless expressly stipulated in the Contract, or having with the latter an employee-employer relationship. Each Party therefore prohibits itself from making a commitment on behalf of and for the account of the other.
The Contract will bind the Parties, their successors, and their authorized assigns. Subsequent amendments are part of the Contract and are subject to all the stipulations governing it.
The provision and numbering of the articles of the Contract are not indicative of their importance. In the event of difficulty in interpretation resulting from a contradiction between the title of an article and its content, the title will be declared non-existent. If any stipulation of the Contract is deemed null or unenforceable, all other stipulations will remain in effect.
The fact that one of the Parties has not demanded the application of any provision of the Contract, whether permanently or temporarily, may not be considered a waiver of the rights of that Party arising from said provision.
The Parties elect domicile in their registered office.
NOTIFICATIONS
All notifications, communications, formal notices provided for by the Contract will be deemed validly delivered if addressed by registered letter with acknowledgment of receipt to:
For the Company: 7bis rue Gambetta - 98800 Nouméa
For the Client: at the mailing address listed on their account and/or invoices unless otherwise written by the Client.
DEVIATIONS
23.1. General deviations
The parties may deviate from these general conditions of sale by mentioning in the purchase order the following express mention “By deviation from the general conditions of sale [...]”.
23.2. Hosting deviations
At its convenience, the Client may choose to host the solution themselves, without this being assimilated to an “on-premise” contract. Indeed, hosting the solution at the Client does not entail any transfer of intellectual property and does not constitute a permanent acquisition of the solution.
Thus, the obligation to uninstall the solution arising from Article 17.4 of these provisions remains fully applicable.
In such cases, Article 5 of these GTC is not applicable. The conditions and prerequisites for hosting must be defined in the contract.
Moreover, the SLA timelines indicated in Article 7 of these provisions are applicable only if the Company has access to the machine hosting the solution.
Therefore, the Client must perform the updates of the solution themselves. However, the Company may offer complementary services for the execution of updates at the Client's location, which will lead to a new contract.
ANNEX RELATED TO PERSONAL DATA PROCESSING
1° OBJECT
In the context of these General Terms and Conditions, the Company provides services for making the Optimal HR Platform available. In this context, the Company may process personal data, in particular concerning the Client's Employees (hereinafter referred to as the " Entrusted Data ").
In this context, the Client is the data controller of all processing of the Entrusted Data and the Company is the processor under the GDPR. This annex aims to define the conditions under which the Company commits to carry out, on behalf of the Client, the processing operations of the Entrusted Data necessary for the execution of the Services.
In this regard, each Party undertakes to comply with the applicable regulations regarding the processing of personal data, and in particular, the GDPR.
2° DESCRIPTION OF THE PROCESSING SUBJECT TO SUBCONTRACTING
The Company is authorized to process on behalf of the Client the Entrusted Data necessary to provide the services of making the Platform and the associated subscribed Services available under the following conditions :
(i) Category of persons concerned by the processing of personal data : the Employees (hereinafter referred to as " Data Subjects ");
(ii) Types of data concerned by the processing :
Identification of the employee;
Data related to the employee's children;
Data about the employee's career ;
Data related to absences ;
Data related to working time ;
Data related to expenses and professional fees ;
Data related to advances ;
Data related to documents ;
(iii) Nature of the operations carried out on the Entrusted Data: the nature of the operations performed on the data depends on the technical options and implementation methods of the Platform chosen by the Client, as
described in the Order Form and may include, in particular :
The display of the Entrusted Data on the Platform and the downloading and extraction of the Entrusted Data by the Client ;
If applicable, the hosting and storage of the Entrusted Data ;
The processing of the Entrusted Data in the context of the use of the electronic time clock ;
Access to the Entrusted Data by the Company's services (including its subsequent subcontractors) for support, administration, or maintenance purposes.
(iv) Purposes of the processing, if applicable :
Management of personnel recruitment ;
Administrative management of personnel ;
Monitoring of the career and training of the Employee ;
Management of absences and paid leave ;
Management of parental leave absences (sick child care, adoption, birth, etc.) ;
Management of working hours (clocking in, scheduling, overtime, quitting hours) ;
Management of payroll data ;
Management of expenses and professional fees ;
Management of salary advances ;
Management of human resources (employee directory and organizational chart) ;
Electronic document management ;
Internal communication ;
Monitoring of statistical data (absences, company growth, workforce distribution) ;
In any case, it is reminded that it is the sole responsibility of the Client, as the data controller, to determine the purposes of its processing of the Entrusted Data and to inform the Data Subjects accordingly.
3° OBLIGATIONS OF THE PARTIES
3.1 Generalities
The Company commits to:
(i) Process the Entrusted Data solely for the purposes detailed in Article 2(iv) of this Annex ;
(ii) Process the Entrusted Data only in accordance with the documented instructions of the Client contained within the General Terms and Conditions, including regarding transfers of personal data to a third country or to an international organization (except where the Company is required to process the Entrusted Data under European Union law or the law of a Member State) ;
(iii) Inform the Client, before the processing is implemented, when it is required to proceed with a transfer of data to a third country or an international organization under European Union law or the law of the Member State to which it is subject, unless the relevant law prohibits such information for significant public interest reasons ;
(iv) Immediately inform the Client if it believes that an instruction from the Client constitutes a violation of the GDPR or any other provision of EU law or the laws of Member States relating to data protection ;
(v) Ensure that individuals authorized to process personal data under these General Terms and Conditions commit to respecting the confidentiality of the Entrusted Data or are subject to an appropriate legal obligation of confidentiality and receive the necessary training on personal data protection.
The Client commits to:
(i) Comply with all specific obligations applicable to it as the data controller of the Entrusted Data under the applicable regulations, including the GDPR ;
(ii) Document in writing any instruction regarding data processing by the Company ;
(iii) Ensure, prior to and throughout the processing duration, compliance with the GDPR obligations regarding data protection by the Company.
3.2 Subsequent Subcontracting
In order to carry out the processing of the Entrusted Data necessary to provide the Services to the Client, the Company may engage subsequent subcontractors, who will carry out specific processing activities on behalf of the Client. The Client acknowledges this fact and gives its general consent to the use of subsequent subcontractors, in compliance with this Article 3.2.
In this respect, any subsequent subcontractor will be required to meet data protection obligations at least equivalent to those provided for in these General Terms and Conditions. For this purpose, these obligations will be established in a contract or any other legal act between the Company and the subsequent subcontractor. In this context, the Company will ensure that the subsequent subcontractor provides similar guarantees to those set forth in this Agreement and, in any case, sufficient guarantees regarding the implementation of appropriate technical and organizational measures to ensure that the processing meets the requirements of the GDPR.
In the event of anticipated changes to the subcontractors, whether due to the replacement of a subsequent subcontractor or the recruitment of a new subsequent subcontractor, the Company will inform the Client in advance and the Client will have the opportunity to raise objections to the proposed changes.
If the subsequent subcontractor fails to fulfill its data protection obligations, the Company remains fully responsible to the Client for the performance of said obligations by the subsequent subcontractor.
3.3 Legal Basis and Collection of Entrusted Data
As the data controller, it is the Client's responsibility to ensure that it has a valid legal basis under applicable regulations allowing for the processing of the Entrusted Data and that any Entrusted Data communicated to the Company has been collected lawfully and fairly.
3.4 Right to Information of Data Subjects
It is the Client's responsibility, as the data controller, to provide Data Subjects with complete information pursuant to applicable regulations, and in particular, where applicable, Articles 13 and/or 14 of the GDPR.
3.5 Exercise of Rights by Data Subjects
The Client is responsible for handling all requests from Data Subjects regarding the exercise of their rights under applicable data protection regulations, including the right of access, the right of rectification, the right of erasure and opposition, the right to restrict processing, the right to data portability, and the right not to be subject to automated individual decision-making (including profiling).
To the extent possible, reasonable, and proportionate, and within the limits of what concerns it, the Company will assist the Client in fulfilling its obligation to respond to requests for the exercise of rights of Data Subjects. The assistance provided by the Company in this context will be at the Client's expense.
3.6 Notification of Personal Data Breaches
The Company shall notify the Client of any personal data breach as soon as possible after becoming aware of it and by the following means: email, phone call to the address/number specified by the Client specifically for this purpose. The Company will provide reasonable assistance to enable the Client to comply with any notification obligations to the competent supervisory authority and/or communication to the affected data subjects regarding this breach. The assistance provided by the Company in this context will be at the Client's expense.
3.7 Company's Assistance in the Client's Compliance with Its Obligations
Given the nature of the processing and the information at its disposal, the Company will provide reasonable assistance to the Client for carrying out data protection impact assessments and consulting the supervisory authority in advance. The assistance provided by the Company in this context will be at the Client's expense.
3.8 Security Measures
The Company commits, under the conditions of Article 32 of the GDPR, to take all appropriate technical and organizational measures to ensure a level of security appropriate to the risks to the rights and freedoms of the data subjects, as well as to assist the Client in fulfilling its obligations in this regard concerning the processing of the Entrusted Data under the General Terms and Conditions.
3.9 Location and Transfers of Entrusted Data
The Entrusted Data is stored on servers located in GDPR-compliant areas approved by the European Union and published on the website of the CNIL. More specifically, on the Google LLC platforms that are HDS certified by the French government and GDPR certified by the European Union. The Company reserves the right to change the hosting location while respecting the above conditions.
Any transfers of data outside the European Union are governed by the signature between the Company and the recipient of the Entrusted Data located outside the European Union of the standard contractual clauses adopted by the European Commission in accordance with its implementation decision (EU) 2021/914 of June 4, 2021, reinforced, if necessary, by the adoption of additional measures to protect the rights and freedoms of data subjects.
3.10 Retention Period and Fate of Entrusted Data
Unless otherwise documented instruction from the Client, at the end of the Services, the Company commits to delete all Entrusted Data within 10 days following the end of the Services (unless European Union law or applicable law of a Member State requires the retention of such data). Upon written request from the Client, the Company will return to the Client, at the Client's expense, all Entrusted Data prior to their deletion from the Company's systems.
3.11 Monitoring Compliance with the Company's Obligations
The Company shall provide the Client with all necessary information to demonstrate compliance with its obligations under this Agreement and allow for audits to be carried out under the following conditions :
(i) The Client may conduct no more than one audit per twelve (12) month period.
(ii) The Client shall bear all costs of the audit.
(iii) The audit must be conducted during business hours and may not exceed 2 business days.
(iv) The audit may be conducted by the Client directly or by a third independent party.
In the latter case, the selection of external auditors shall be agreed upon by the Parties.
Auditors must have liability insurance covering the audit, their liability may be pursued by the Company in case of damage caused to it.
(v) The Client shall notify the Company with a minimum thirty (30) days written notice, so that the Parties can mutually agree on an audit date.
(vi) The Client must ensure that the conduct of the audit does not disrupt the Company's performance of its obligations under the General Terms and Conditions, nor the Company's activities in general.
(vii) If the audit leads to interruptions of all or part of the Company's services, the Parties agree that these interruptions will not be taken into account in evaluating the Company's compliance with service quality commitments and that the Company cannot be held responsible for them.
(viii) All documents, information, or data, regardless of the medium, entrusted by the Company to the auditors and/or to the Client during the audit are confidential and must be treated as such.
(ix) The Company commits to cooperate with audits, at the Client's expense.
(x) The Client is responsible for any loss or damage to the Company arising from the audit, whether the audit is conducted directly by the Client or by external auditors.
3.12 Liability
In case of breach of its obligations under this Annex, the Company's liability shall be framed in accordance with the provisions of the General Terms and Conditions.
