General Terms and Conditions of Sale
General Terms and Conditions of Licence for the use of the Dashdoc services and solution
Last updated on 16 March 2022
The present general terms and conditions ("General Terms and Conditions") apply between Dashdoc, a simplified joint stock company with registered office at 5 avenue du Général de Gaulle in 94160 Saint-Mandé, registered with the Créteil Trade and Companies Register as number 813 603 222, represented by Benoit Joncquez in his capacity as its President (hereinafter referred to as "DASHDOC"), and the customer (hereinafter referred to as the "Customer") who has signed a contract for the provision of services (hereinafter referred to as the "Subscription Contract").
DASHDOC and the Customer are referred to individually as the "Party" and jointly as the "Parties".
Preamble:
DASHDOC sells online application solutions for transport management which it has designed and developed in SaaS mode.
As part of Dashdoc's duty to inform and advise, Dashdoc's services have been presented in detail to the Customer, inter alia at a demonstration and/or by means of a documented commercial presentation. Consequently, the Customer hereby acknowledges and affirms that:
- he has received all the necessary prerequisites for the installation and functional and technical use of the Services;
- he has had time to consult the documentation sent to him and has understood the presentation of the Dashdoc solutions so that he hereby enters into the agreement with full knowledge of the facts;
- he has taken the time needed and has the skills required to determine the appropriateness of using the Dashdoc services in keeping with his needs.
An update of the documentation of the presentation of the Services is available at any time on simple request of the Customer to Dashdoc in the "HELP" section, which can be accessed from an Administrator Account.
The Customer hereby recognises that the amount of pre-contractual information provided by Dashdoc is understood within the limit of his knowledge of the projects and needs of the Customer in the way the latter explained these to him, and within the limit of the Customer’s IT infrastructure.
After having satisfied himself that the services proposed by Dashdoc are a fit with his needs and constraints, the Customer has decided to sign up to a Subscription Contract for the Services according to the terms and conditions of the Contract, which consists of a Subscription Contract specifying the Scope of the Services as well as the present General Terms and Conditions.
The Customer may save and print the present General Terms and Conditions using the standard features of their browser or computer.
Article 1. Definitions
For the purpose of this document, the words and phrases beginning with a capital letter shall be understood as specified:
"Administrator" means the natural person(s), appointed by the Customer at the time of ordering, who shall be vested with the most extensive rights to manage the Solution, create new User Accounts, define the rights of other Users, etc.
"Application" means the mobile application published and made available by DASHDOC to be installed and used on the Mobile Devices by the Users.
"Authentication" means the procedure by which the User of the Solution states and confirms his identity by communicating his User ID and password or an access code.
"BackOffice" means the part of the Solution installed on the Platform. The BackOffice consists of:
- a web portal accessible to the Users by means of a browser (including the Administration Interface),
- a "webservice" part, and
- a part that interacts with the Application installed on the Users' Mobile Devices.
"Database" means the set of Data, organised for use by the Solution, whose structure is the property of DASHDOC, independently of the Data that make up the Database.
"User Account" means access opened to a User. Each User Account concords with a unique User and a unique User ID.
"Contract" means the contractual whole consisting of the Subscription Contract and the present General Terms and Conditions in compliance with the hierarchy specified in article 3.1 below.
"Subscription Contract" means the specific terms and conditions of the Agreement detailing the specific contract terms of the Services subscribed to by the Customer.
"Date of Commissioning": Delivery date of the Customer's Account after the Configuration stated in the Subscription Contract for general reference purposes.
"Documentation" means all the pages and documents that are accessible free of charge in digital form at the https://help.dashdoc.eu/ website, including in particular the description of the functionalities of the Solution and the list of prerequisites necessary for using the Solution.
"Data" or "Content": means, without this list being exhaustive, all data, texts, information, files, photographs relating to the road haulage of goods (e.g. road transport routes, invoices, waybills, etc.) imported, shared, downloaded, stored, sent or received by the User in the context of the execution of the Services.
"User ID" means a unique access code assigned to a User which, together with a password, enables the User to authenticate himself to access the Solution. It is hereby specified that Driver Users may log in without a password, by means of a simple code sent to them by invitation from a BackOffice User.
“Administration Interface" means the computer tool included in the BackOffice of the Solution, accessible on the DASHDOC portal at https://www.dashdoc.eu/app/settings/team, allowing the Administrator and him alone, by means of the User ID and the password created at the time of ordering, to administer the Solution and in particular to create or delete User Accounts, manage the authorisations of each User, etc.
“Migration” or “Configuration” means the integration by DASHDOC of data relating to the Customer and his Staff Members and any other Content transmitted by the Customer in order to set up and configure the associated Accounts prior to the use of the Services by the Customer.
“Commissioning” means the actual delivery of the Customer Account after the Configuration.
“Scope of Services” means the services subscribed to by the Customer under the Contract. The Scope of Services is specified in the Subscription Contract
"Platform" means the set of servers made accessible to the Customer and the Users by DASHDOC, on which the BackOffice of the Solution runs and on which the Database is hosted, providing an interactive, online electronic service in "SaaS" mode for the management and monitoring of the road haulage operations of goods, intended in particular for consigners of goods, carriers and their drivers, as well as for the loading and delivery sites and the sub-contractors, regardless of whether they are DASHDOC Customers or not. The Platform is accessible via the following links: dashdoc.eu, dashdoc.com and dashdoc.co.uk.
"Third Party Programs" means computer programs (including open source software) not owned by DASHDOC that are or shall be integrated into the Solution.
"Subscription Price or Invoiced Price" means the billed or billable Price, in consideration of possible changes in the number of Users, additional Services and options subscribed to and the Service Prices during the course of the month invoiced.
"Service Price or Service Price" means the Service Price on the date on which the Contract is taken out, in consideration of the rates for the Services, the number of entities (SIRET) and the number of Users involved on that date.
"Customer Service" means the service made available to the Customer in order to provide information on the functionalities of the Services and the use of the Application Solutions.
"Services" means all the Application Solutions and services made available to the Customer by DASHDOC under the Contract in compliance with the Scope of Services.
"Support Services" means the Customer Service provided by DASHDOC to the Customer under the Contract.
"SaaS" (Software as a Service) refers to the mode of remote provision of the BackOffice functionalities, using Internet technologies and accessible over the Internet, whereby the BackOffice and the Database processed by the SaaS software remain on DASHDOC’s Platform.
"Solution" means the "DASHDOC” software solution, developed and published by DASHDOC, consisting of a BackOffice part which runs on the Platform and an Application which is installed on the Mobile Devices. In part, the Solution is made available to the Customer by way of a connection to the Platform over the Internet. The Solution is described in the Documentation and in the Quote.
"(Mobile) Devices" means the hardware equipment (such as tablets or smartphones) made available by the Customer to the Users (or some of them) to access the Solution.
"User" means any natural person authorised by the Customer, directly or indirectly, to use the Solution, accessed via the Administration Interface, whether invited directly by the Customer or by any organisation with which the Customer works in partnership or has an arrangement in place with, and who holds a corporate account with DASHDOC (without necessarily being a customer). The User may be an employee, consultant, executive, director, driver, sub-contractor, etc. - without this list being exhaustive - of a consigner of goods, a carrier, a consignee, a loading or delivery site or a sub-contractor of any of these organisations to whom the Customer wishes to provide access.
Article 2. Purpose
The purpose of the General Terms and Conditions is to define the terms under which DASHDOC grants the Customer the right to use the Solution in SaaS mode and provides the Customer with support and maintenance services (jointly referred to as "Access to the Solution" or "Services"), in return for payment by the Customer of the agreed price.
The purpose of the present General Terms and Conditions is to establish the terms and conditions applicable to the Services provided by DASHDOC to the Customer under the Contract and set out in article 7 of the present General Terms and Conditions.
The General Terms and Conditions apply to (i) all Subscription Contracts issued, whether in paper or in digital form, by DASHDOC and accepted by the Customer relating to the provision of Services and detailing the specific terms and conditions negotiated and signed between the Parties or (ii) any order issued by the Customer to DASHDOC and consistent with this Subscription Contract. The General Terms and Conditions and the Quote constitute the entire agreement between the Parties ("Contract"), to the exclusion of all and any previous agreements or documents having the same subject.
Article 3. Contract documents
The Agreement is binding on the parties only after (i) the Subscription Contract has been signed by a duly authorised representative of the Customer within the time period, if any, specified in the Subscription Contract by DASHDOC (ii) this document has been signed by a duly authorised representative of DASHDOC.
1. Contractual hierarchy, entry into force of the Contract
The Contract formed between DASHDOC and the Customer consists of the following documents in the order of priority as listed:
- the Subscription Contract and any appendices and addenda thereto;
- the present General Terms and Conditions.
Where one or several provisions of the contract documents that make up the Contract are found to conflict, the provisions of the higher-ranking documents shall prevail.
The Parties hereby agree that any handwritten notes added by the Customer shall be non-binding and without value, unless expressly accepted by DASHDOC.
It is hereby specified that the Contract constitutes the entire agreement of the Parties as to its subject matter and prevails over any other general terms and conditions of purchase, sale or service of either Party, or over any undertaking, statement or other previous agreement between the Parties having the same subject matter.
The performance of the Contract implies that the Customer shall be required to have unreservedly acted in compliance with the present General Terms and Conditions.
2. Acceptance and evolution of the present Terms and Conditions
The Customer is deemed to have read the entire Contract and to have duly and unreservedly accepted and agreed to its terms when signing it.
The Parties hereby acknowledge that acceptance of the Contract by electronic means shall have the same probative value between the Parties as an agreement on paper.
DASHDOC reserves the right to unilaterally amend the present General Terms and Conditions. Any such amendments shall be enforceable against the Customer after they have been published by any means whatsoever.
Any substantial amendments to the General Terms and Conditions shall be communicated to the Customer within thirty (30) calendar days before they take effect. In the event the new General Terms and Conditions are refuted, the Customer remains free to terminate the Contract subject to the terms of article 14.
Article 4. Start Date and Term
1. Term
The Contract takes effect from the date on which the Subscription Contract is signed by both parties for the Term specified in the Subscription Contract.
Where the Customer wishes to terminate the Contract, he shall be required to do so in observance of the procedure set out in article 14.
Each Term shall be binding and irrevocable.
2. Withdrawal
The Customer is hereby advised that, in compliance with article L221-3 of the Consumer Code, he may have a right of withdrawal provided the following three requirements are met:
- the contract was concluded outside the establishment;
- the subject matter of the contract does not come within the scope of the Customer's main activities;
- the Customer hires a number of Employees that is equal to or less than to five.
Consequently, if the concurrent requirements set out in the article above are duly met by the Customer, the latter may notify DASHDOC, by letter sent by recorded delivery with acknowledgement of receipt, of his wish to exercise his right of withdrawal within fourteen (14) days from the date on which the Contract was signed.
Article 5. Implementation of the service
5.1 Prerequisites
5.1.1 Technical requirements
The Customer must have a high-speed Internet connection (ADSL or Fibre).
The Customer hereby acknowledges he is aware that the Application Solution is accessible and works only with the browsers and operating systems listed in the "HELP" section which is accessible from any Administrator Account.
The Customer hereby acknowledges he shall need to update his browser and operating systems in order to fully use the Application Solutions.
5.1.2 Content accuracy requirements
The Customer hereby acknowledges that the Application Solutions have been designed to provide an efficient service for managing his own transport operations and/or managing outsourced transport operations and/or managing drivers' assignments and/or managing sites in accordance with the Scope of Services subscribed to by the Customer.
Similarly, the Support Services are provided based on the Content communicated and/or completed by the Customer on the Application Solutions.
Consequently, the Customer hereby acknowledges that the Application Solutions do not allow for the accuracy of the Contents communicated and/or completed by the Customer to be verified and that the Support Services shall be provided in consideration of this Content.
5.1.3. Access and identification requirements
The Customer and the Users shall be required to put in place the appropriate steps to ensure the security of access to their Account, in particular by means of unique, personal and robust passwords that are kept strictly confidential.
The Customer shall make sure each User takes due precautions to ensure the security of his User Account, which implies that he shall impose rules on access and identification, in particular with regard to the use of unique, personal and robust passwords that are kept strictly confidential.
The Customer hereby acknowledges that DASHDOC shall not be liable for fraudulent access to the Application Solutions and the Services due to a defect or a security breach resulting from carelessness, error or omission of the Users or the Customer himself.
5.2 Migration, Configuration
The Migration enables the Customer to have his Account configured before using the Services for the first time.
The Customer hereby acknowledges that the Account Migration shall be carried out by DASHDOC with the Customer's assistance and undertakes to provide DASHDOC with all the Content requested by DASHDOC in compliance with the imparted deadlines, on the understanding that this Content must be accurate, current and complete.
Consequently, the Customer hereby acknowledges that the Commissioning Date is provided for general reference purposes and that DASHDOC shall not be liable in the event the Commissioning Date is reasonably exceeded or in all cases where the delay is attributable to the Customer.
This Configuration shall be invoiced in accordance with the price and the billing terms set out in the Subscription Contract.
5.3 Commissioning
The Commissioning of Accounts begins when the Customer is informed by DASHDOC, by all possible means, that the Configuration has been completed.
Consequently, the Customer hereby acknowledges and accepts that he shall be able to use the Services only from the actual Commissioning date.
Article 6. How to access the services
The Solutions provided by DASHDOC for transport management are accessible over the Internet via a secure SSL connection (https) and a dedicated url.
The BackOffice remains on the DASHDOC Platform. DASHDOC shall not provide the Customer with a copy of the BackOffice, in any form or on any medium whatsoever.
The Application is installed and updated by the Customer on the Mobile Devices.
DASHDOC shall endeavour to provide permanent access to the Application Solutions 24 hours a day and 7 days a week, except during periods of unavailability for maintenance purposes as set out in article 7.2.2, in the event the Services are suspended as set out in articles 9.3. and 12.2. or in case of unavailability caused by circumstances beyond DASHDOC's control, including instances of Force Majeure as specified in article 27 of the Contract or failures or delays of Internet service providers.
It is up to the Customer to make sure the Data transmitted by him to DASHDOC's Platform are free of error, complete, truthful, up to date and legal.
The Customer alone shall be personally responsible for acquiring the hardware (with particular reference to the Mobile Devices) and software, as well as for taking out the relevant telecommunication subscriptions (Internet access) as required for the remote use of the BackOffice. The Customer is hereby advised that access to the BackOffice requires Users to first connect to the Internet.
The telecommunication requirements for accessing and using the BackOffice are detailed in the Documentation.
The costs of connecting to the Internet to access the BackOffice shall be defrayed solely by the Customer.
The Customer hereby affirms he is aware that the transmission of data over the Internet is subject to risks that are totally beyond DASHDOC’s control, particularly in terms of transfer speed, reliability of connections, security and the integrity of the data transmitted.
Consequently, DASHDOC waives all and any liability for any problems arising from issues to do with data transmissions over the Internet, both in respect of the Application and in respect of the use of the BackOffice.
Article 7. Description of the services
Subject to the terms set out in article 7.1, DASHDOC hereby grants the Customer the right to use the Application Solutions in compliance with the Scope of Services and subject to the terms detailed below. The Scope of Services selected by the Customer is detailed in the Subscription Contract.
DASHDOC provides data hosting services, and ensures the maintenance and security of the Solutions. As part of the Services provided by DASHDOC under the Contract, the Customer shall be able to call on assistance from DASHDOC’s Customer Service subject to the terms set out in article 7.3
In addition to the delivery of the Services, DASHDOC shall configure the Customer’s Account, as detailed in article 5.2, prior to using the Services.
7.1 User licence
In return for payment of the Subscription Price, DASHDOC hereby grants the Customer a personal, non-exclusive, non-assignable and non-transferable right to use the Application Solutions for the term of the Subscription Contract, in consideration of the number of Staff Members working for the Customer.
The Customer may use the Application Solutions only within the Scope of the Services and for his own internal professional needs, to the exclusion of any other purposes.
The right of use means the right to represent and implement the Application Solutions in compliance with their intended purpose, in SaaS mode via a connection to an electronic communications network. On no account shall the Customer be permitted to make the Application Solutions available to a third party that is not a User or Administrator and shall strictly refrain from using the Application Solutions for any other purposes, with particular reference to all and any forms of adaptation, modification, translation, arrangement, distribution, decompilation, without this list being exhaustive.
The Customer hereby undertakes not to modify, decompile, disassemble or identify the source code, merge or combine said code with any other software, and not to copy, reproduce, transcode, adapt or modify any of the software, except as expressly authorised by article L122-6-1 of the Intellectual Property Code.
The Customer hereby acknowledges that the licence of rights granted in the present article does not give him any property rights over the Application Solutions or the elements that make up the said Solutions, of which the title of ownership rests and shall continue to rest exclusively with Dashdoc.
7.2 Hosting, maintenance and security
7.2.1 Hosting
The Application Solutions and the data they contain are hosted by DASHDOC on Google Cloud servers in Belgium.
7.2.2 Maintenance
As part of the continuous improvement of the Solutions and subject to prior notification to the Customer, DASHDOC may install updates or new versions.
The Customer hereby also acknowledges that the Application Solutions work with operating systems and Internet browsers.
DASHDOC shall bring its best efforts to bear to make the Application Solutions compatible with any new browsers and updates/upgrades thereof. Where updates/upgrades of browsers specified in article 5.1 were to result in limitations of certain features of the Application Solutions, DASHDOC may propose that the Customer use a workaround and/or switch to a different operating system pending the publication of a new version or an update of the Application Solutions and/or a correction of the browser or operating system concerned.
DASHDOC hereby undertakes to handle the corrective and evolutionary maintenance of the Application Solutions at no extra cost throughout the term of the Contract.
The Customer hereby acknowledges that he has been informed through the present General Terms and Conditions that the Services may be temporarily unavailable, in particular for maintenance reasons. DASHDOC shall bring its best efforts to bear to carry out maintenance work which might result in service interruptions outside of Working Days and Business Hours.
DASHDOC hereby undertakes to ensure that any scheduled periods of unavailability of more than one (1) hour occurring on Working Days and Business Hours take place in observance of one (1) calendar week’s prior notice.
DASHDOC hereby offers assurances that upgrades and new software versions resulting from maintenance activities shall not subsequently result in any decline or deterioration of the Services in terms of performance and functionality.
7.2.3 Security
DASHDOC is committed to securing access to and the use of the Application Solutions in compliance with the practices in this area in accordance with the measures explained on its website. In response to the Customer's request, DASHDOC can provide further details on the security measures implemented to secure access to and the use of the Application Solutions.
The Customer hereby undertakes, on his own behalf and on behalf of the persons working for him, not to circumvent or attempt to circumvent the protection system integrated into the Database.
7.3 Customer Service
DASHDOC’s Customer Service is available during Working Days and Business Hours and is to be contacted to this end in writing via the "HELP" tab which can be accessed from any Administrator Account.
Before requesting assistance from the Customer Service, the Customer hereby undertakes to check if the "Online Help" section, which can be accessed from his Administrator Account, and which is enriched as the contractual relationship progresses, does not provide the answer to his question.
It is hereby expressly agreed between the Parties that the tasks relating to the day-to-day administration of the Accounts (in particular the creation of new users and the updating of the Content and of all data) do not come within the remit of the Customer Service but must be carried out by the Customer himself.
The Customer Service shall deal with Customer requests within a reasonable time frame during Working Days and Business Hours.
The Parties hereby agree that DASHDOC shall not provide assistance through its Customer Service in the case of requests outside its sphere of competence, especially with requests:
- not relating to the content or the use of the Application Solutions and their functionalities;
- regarding tasks relating to the day-to-day administration of Employee and Administrator Accounts (including the creation of new Employee Accounts);
- not originating from the holder of an Administrator Account;
- that are contrary to the statutory provisions in force or to the Contract.
The assistance is not intended to replace the User training services or the first points of contact necessary to obtain the level of competence required by the Customer. DASHDOC cannot be expected to carry out any updates/upgrades requested by the Customer. In any case, the duration of the services provided by DASHDOC within the framework of this assistance is limited to 6 man-days per month.
The Customer hereby acknowledges and accepts that the Customer Service’s availability does not discharge him from his obligation to provide correct and up-to-date Content when setting up his Account and, in compliance with article 2 and/or 5.2 of this contract, undertakes to complete and update all Content used in the context of the use of the Application Solutions, according to his situation and that of his staff, this obligation being his responsibility alone.
8 Developments
8.1 Development of Services
DASHDOC reserves the right to freely develop the Services, including for legal or technological reasons at its sole discretion, in order to create new features or to improve existing features. All changes to the Services already subscribed to by the Customer are enforceable against the Customer without prior notice from the time they go live and/or are communicated by DASHDOC.
The Customer hereby acknowledges that the conclusion of the Contract is not conditional upon the delivery of new features and/or services in the future.
8.2 Price developments
The Customer hereby acknowledges that DASHDOC reserves the right to change all or part of the elements that make up the Price of Services during the contractual relationship, due to further developments of functionalities.
In that case, the Customer shall be notified of the new pricing policy by all possible means. The new prices shall apply to the Services provided from the calendar month following the notification. Where the Customer refuses to accept the new Service Prices, the Customer shall remain free to terminate the Contract subject to the terms set out in article 14 below.
The Applicable Rates are available on request through the "HELP" section which is accessible via any Administrator Account.
9 Prices, Invoicing and Payment terms
9.1 Prices
All prices are exclusive of VAT and other taxes, duties or services payable by the Customer in compliance with the regulations in force on the date of issue of DASHDOC’s invoice, which shall remain the responsibility of the Customer alone
9.1.1 Subscription Price
The Subscription Price is made up of a fixed flat rate portion per establishment (SIRET), a portion that is proportional to the number of Users and a portion that is proportional to the number of transport runs as specified in the Subscription Contract;
The Price of the Services specified in the Subscription Contract is a price that is established based on the rates in force and the number of Users and Transport runs at the time the Contract is concluded.
The Customer hereby acknowledges that this price may go up or go down in consideration of the variables listed below:
- subscribing to or declining new modules and/or options;
- a rise or a reduction in the number of entities and/or Users and/or the number of transport runs compared to the number declared at the time of signing the Contract;
- possible increases in the rates of the Services;
The Price Invoiced to the Customer shall take into account any such changes and shall be equal to the price which the Customer shall have to pay for the Services provided for the month concerned, which the Customer hereby acknowledges and accepts.
9.1.2 Configuration Price
The price for the Configuration is specified in the Subscription Contract.
9.2 Billing
The Billing Price and the Configuration Price are invoiced in compliance with the terms and conditions set out in the Subscription Contract.
All invoices are to be paid within a period not exceeding thirty (30) days from the date of issue of the invoice.
Invoices are paid by direct debit. DASHDOC uses Stripe's secure direct debit service. Unless otherwise stated in the Subscription contract, the Customer shall take note of the terms of use of the Stripe service, which are available to be consulted at https://stripe.com/en-fr/legal, and which he hereby expressly accepts. All direct debits via Stripe shall be transacted on the date of issue of the invoice.
The Customer hereby acknowledges and expressly accepts that DASHDOC reserves the right to send its invoices in digital form (PDF) to the e-mail address specified by the Customer as the contact address in the Subscription Contract.
The Customer shall also be able to consult his previous invoices from his Administrator Account.
The Customer hereby acknowledges that, at the end of this period or in the event the Contract is terminated, the invoices shall no longer be accessible on his Account and that it is consequently up to him to archive-store the invoices himself throughout the course of his contractual relationship with DASHDOC, in accordance with the applicable legal periods.
The Customer may, by written request sent by email to [email protected], ask to be sent his invoices in hard copy (paper).
9.3. Default of payment
In the event of non-payment on the due date, in particular in the event that it is impossible to collect the amount billed in whole or in part, late payment interests equal to three (3) times the legal interest rate for each day of delay shall be payable by the Customer by operation of law from the day following the due date.
The legal interest rate adopted is equal to the interest rate applied by the European Central Bank for its most recent refinancing operation raised by 10 percentage points in force on the day following the date on which payment is due.
In addition, a flat rate sum in compensation of forty (40) euros (not liable to VAT) shall also be due to DASHDOC for recovery expenses incurred in case of all late payments, without prejudice to damages and other costs which DASHDOC reserves the right to claim, including through the courts.
Interests and late payment penalties shall be claimable by operation of law, with no letter sent by recorded delivery being required to enable DASHDOC to recover said interests and penalties.
In addition, in case of non-payment by the Customer of the sums due on the due date further to formal notice of default demanding payment which failed to be heeded beyond a period of sixty (60) days, DASHDOC reserves the right to suspend the Customer’s access to his Accounts and the Services with immediate effect after having notified him thereof by all possible means. The Parties hereby agree that the suspension of Services shall cause all sums invoiced by DASHDOC to the Customer to become immediately claimable. Only payment in full of the sums owed by the Customer to DASHDOC shall see the Customer reinstated to use his Accounts and be eligible for the Services.
10 Ownership
10.1 Customer's property
The Customer is and remains the owner of all Content he uploads or fills in on the Application Solutions as part of the Contract. None of the above shall ever belong to DASHDOC nor shall DASHDOC ever claim "ownership" of said Data and Content.
The Customer hereby acknowledges that this Content may be transmitted to an administrative or judicial authority upon the latter’s request.
The Customer hereby grants DASHDOC the right to host, use, display or process his Content in order to provide the Services in compliance with the Contractual provisions.
The Customer hereby acknowledges that he alone is responsible for:
- the accuracy, integrity, quality, legality, reliability and appropriateness of the Content;
- obtaining all rights associated with the Content and required to enable DASHDOC to deliver the Services.
10.2 Ownership of DASHDOC
DASHDOC is and shall remain the owner of all intellectual property rights relating to the Services made available to the Customer or affirms it has obtained the relevant intellectual property rights required to exploit them.
Consequently, the title of ownership of all elements that make up the Services, whether their structure, appearance or content (including databases, texts, graphic texts, images animated or otherwise, sounds, drawings, artwork, logos, names, trademarks, designations, tabs, functionalities, signs, etc.) rests with DASHDOC or is the subject of a concession / licence of intellectual property rights to the latter’s benefit. The above are subject to the provisions of the Intellectual Property Code and as such are protected against any use not authorised by law or the Contract. Consequently, any use of these elements by the Customer and the Users requires prior written consent from DASHDOC.
Any suggestions for error corrections or observations on any new functionalities or improvements to the Solution, Platform, Application or Database which the Customer would care to put to DASHDOC shall be the exclusive property of DASHDOC, which at all times shall remain free to choose at its sole discretion whether or not to develop the functionalities and corrections suggested or requested by the Customer.
The Customer hereby undertakes to use the Services solely in the context of his professional activities. In this respect, he shall not and acknowledges that he is not authorised to allow a third party, without this list being exhaustive, to:
- modify, create derivative works of, disassemble, decompile, reverse engineer, reproduce, republish, download or copy any part of the Services and the associated documentation (including data structures or similar components);
- access or use the Services to develop or provide support services, whether directly or indirectly, for products or services that compete with those of DASHDOC;
- license, sell, transfer, assign, distribute, outsource, permit time-share or service bureau use of, or otherwise commercially exploit or make available, the Services to any third party other than as expressly permitted under the Contract.
The Customer hereby warrants the compliance of his Users and Staff Members with DASHDOC’s intellectual property rights.
10.3 Guarantee, Compensation
DASHDOC hereby affirms that it holds, without restriction or reservation, all legal authorisations and intellectual property rights granted under the Contract and offers the Customer assurances in this respect.
The Parties hereby agree that DASHDOC cannot be held liable for the Content provided by the Customer or for the non-compliant use by the Customer of the Services and Solutions protected by an intellectual property right.
The Customer hereby undertakes to promptly inform DASHDOC of the existence of a potential infringement of an intellectual property right by an element of the Services or the Solutions and to promptly impart the information in his possession on this matter.
Where an infringement action is brought by a third party against a Party on the grounds that any of the information, concepts, characteristics, instructions, software, data, materials or components provided by the other Party infringe the intellectual property rights of a third party, the latter shall defend the other Party at its own expense and defend, indemnify and hold that party harmless against all claims for damages, all loss, costs and expenses of any kind awarded to the third party under an enforceable court ruling or negotiated out of court by the other Party as part of a possible settlement.
DASHDOC shall be under no obligation to compensate the Customer in the event an infringement action is brought on the grounds of:
- non-compliant use of the Services by the Customer or Users;
- use of the Services in a modified form by the Customer or Users;
- the use of an item not wholly supplied by DASHDOC.
The Parties hereby acknowledge that the provisions of the present article shall constitute their exclusive remedy in respect of an infringement action by a third party.
11 Insurance
DASHDOC hereby affirms it holds an insurance policy with a solvent insurance company covering its public professional errors and omissions liability and its commercial public liability, and covering liability for loss of any kind which it or its employees could cause to the Customer, its employees or third parties in the performance of the Contract.
Upon request, DASHDOC hereby undertakes to provide the Customer with a copy of its insurance policy as well as a cover note confirming its possible sub-contractors hold similar insurance policies.
12 Obligations
12.1 Obligations incumbent on DASHDOC
DASHDOC hereby undertakes to perform the contractual obligations with all possible care as is customary in its line of business under a best endeavours obligation as the Services are provided with the Customer's assistance.
In particular, in the performance of the Contract, DASHDOC shall be bound by the following obligations:
- to provide the Services in compliance with its commercial proposal and the needs expressly stated by the Customer in accordance with the existing standards, laws and regulations in force at the time the Contract is concluded;
- to put in place all human and technical resources to provide the Services in the manner set out herein;
- to provide the Services in compliance with its commercial proposal;
- to coordinate the activities of its various sub-contractors;
- to monitor the availability of the Services and to warn the Customer in good time of any difficulties in the performance of the Services of which it is or becomes aware;
- to take all precautions in compliance with the current state of the art that are necessary with regard to the services assigned to it with a view to the protection of personal data;
- to put in place appropriate measures to protect the Solutions.
12.2 Obligations incumbent on the Customer
In return, the Customer hereby undertakes:
- to use the Services and the Application Solutions only in the context of his professional activities and in compliance with his professional needs and not for illicit, prohibited and / or illegal purposes, to harm third parties or DASHDOC or in ways or situations not set out in the Contract and, more generally, not to disrupt the proper functioning of the Services;
- not to gain unauthorised access to the Services and Application Solutions or to the systems and networks associated therewith;
- to appoint a dedicated contact to communicate with DASHDOC;
- to communicate to DASHDOC the information necessary for the execution of the Services and the Configuration and, in a more general sense, to offer DASHDOC full assistance in the execution of the Services. In this respect, the Customer hereby undertakes to comply with the following general obligations:
- to cooperate in the performance of the Contract whilst being bound during said performance by the obligation to update and ensure the accuracy and completeness of all Content that he is required to provide as part of the Services;
- to provide, at his own initiative, the qualified personnel necessary to ensure the execution of his obligations with a view to the proper performance of the Contract;
- to provide sufficiently qualified and documented information so that it may be used by DASHDOC in the context of its Services;
to check the accuracy, completeness and integrity of the Content ahead of the communication thereof to DASHDOC and to update said Content in real time;
- to observe the deadlines agreed and to ensure that the applicable deadlines are kept in respect of the supply of Content for which he or his sub-contractors are responsible, in accordance with the deadlines agreed between the Parties;
- after Commissioning, to configure his account in real time in consideration of changes in his situation and that of his staff members over the course of the Contract;
- to pay DASHDOC the Account Configuration Price and the Price of the Services in the manner specified in article 9;
- to arrange for access to the Services through all required telecommunications channels;
- not to make the Application Solutions available to third parties other than the Users;
- not to upload Content that contains or is likely to contain viruses or programs that destroy data, or Content that is illegal or likely to offend public order and public decency. The Customer hereby acknowledges that the Content considered to be contrary to applicable laws and regulations may be submitted by DASHDOC to the responsible law enforcement authorities and / or may be immediately removed by DASHDOC;
The Customer hereby undertakes to ensure that each User complies with the present Contract and the terms of use of the Application Solutions specified in the Contract and undertakes to ensure that the use he makes and the Users make of the Content and the Application Solutions complies with applicable statutory and regulatory provisions. In case of waste documents, the actor responsible for creating the identification form bears responsibility for the data in the system regardless of who entered the data;
The use of digital and paper-based identification forms in parallel for the same consignment is prohibited. If two copies should nevertheless exist, the digital version shall apply at all times.
The carrier of a waste shipment must have a device with location determination.
Where the Customer or his Users fail to comply with the above obligations, DASHDOC reserves the right to suspend access to the Services by operation of law without prior notice and to terminate the Contract in the manner set out in article 14, without any compensation being due to the Customer.
The Customer is hereby advised that all Users must read, accept and agree to the general terms of use of the DASHDOC Solution available on the DASHDOC site before starting to use the Solution for the first time (and any new versions of the present General Terms and Conditions as applicable).
The Customer must ensure that his Users have duly understood, accepted and agreed to the general terms of use of the Solution available on the DASHDOC site and in particular that they undertake:
- to use the Solution in a fair manner, in compliance with applicable laws and regulations, in particular the laws relating to intellectual and industrial property;
- not to provide deliberately false or disparaging information about the DASHDOC services provided or about DASHDOC, on penalty of being held liable;
- not to use the Solution in ways that could undermine the integrity, proper functioning or security of the Platform and the Application;
- not to misuse the Solution for personal advertising or product sales purposes;
- not to engage in any form of counterfeiting, reproduction, download, representation or alteration of all or part of the Solution, not to use a "robot" or a data "hoover";
- not to access and/or maintain a persistent presence inside the Solution, understood as an automated data processing system. Any fraudulent access or persistent presence inside the latter is prohibited and punishable by law. The same applies to all forms interference with or alteration of the functioning of this system and the introduction, deletion or modification of the data contained therein;
- not to disrupt the proper functioning of the Platform and the Application, and in particular not to introduce viruses or any other technology harmful to the Solution or the services offered therein;
- not to store, publish or disseminate Content that is offensive, obscene, threatening, abusive, violent, bloody, rude, racist, abusive, defamatory, slanderous, disparaging, deceptive, discriminatory, intended to harass, threaten, embarrass others, pornographic or child pornographic, presenting scenes of nudity, or of a sexual nature, Content that is apologetic of crimes against humanity, likely to incite racial, religious or ethnic hatred, violence or terrorism, degrading to human dignity or the private life of others, illegal or contrary to applicable laws;
- not to store, publish or disseminate Content that is in breach of the intellectual property rights of any third party;
- not to store, publish or disseminate confidential information of a third party without their permission;
- not to store, publish or disseminate Content that may be qualified as embezzlement, swindle, breach of trust or which is otherwise qualified as any other criminal offence;
- not to promote, sell or encourage the sale of goods and services that are subject to regulation (alcohol, gambling, pharmaceutical products, weapons, etc.);
- not to access, use or attempt to use the account, the login and/or password of another User or impersonate another User in any way;
- not to impersonate any other person, User or an employee or representative of DASHDOC;
- not to behave discourteously or rudely towards, or make discourteous or rude comments to DASHDOC staff or consultants assigned to support the Solution and more generally to any other User.
The Customer is responsible for any harm the Data disseminated by his Users or he himself could cause to DASHDOC or a third party and shall defend, indemnify and hold DASHDOC harmless against any action that could be taken against the latter because of these Data.
13 Liability
13.1 DASHDOC’s liability
DASHDOC shall perform the contractual obligations specified in article 12.1 with all possible care as is customary in its line of business under a best endeavours obligation as the Services are provided with the Customer's assistance.
DASHDOC shall assume liability for the ramifications of its faults, errors or omissions, except in the case of direct or indirect loss or harm caused by the Customer himself or by a user or an authorised third party and in cases of force majeure.
In particular, DASHDOC hereby waives all and any liability for:
- the accidental destruction of the Content by the Customer or the destruction, downloading or consultation of the Content by a third party having accessed the Application Solutions using the Customer's User IDs and passwords;
- the consequences of the delay or failure of the Customer to send all the information required to set up and configure the Customer's Account and to enable DASHDOC to deliver the Services;
- the consequences of the provision of inaccurate and/or incomplete Content when setting up and configuring the Customer's Account and/or when delivering the Services;
- difficulties or the impossibility of accessing the Application Solutions and Services by the Customer due to his computer hardware or due to problems connecting to the Internet, on the understanding that the computer equipment and the connection to the Internet or telecommunication expenses are exclusively to be defrayed by the Customer, which the Customer hereby acknowledges and accepts;
- the accidental destruction of data relating to the Customer by the Customer or a third party having accessed the Services without authorisation, through no fault of DASHDOC.
In addition, and in the event of a proven fault on the part of the Customer, DASHDOC shall be liable only for the financial consequences of direct and foreseeable loss arising from the performance of the Services. Consequently, DASHDOC shall on no account assume any kind of liability for indirect or unforeseeable loss or harm to the Customer or third parties, including albeit not limited to any lost profit, loss, inaccuracy or corruption of files or data, commercial loss, loss of turnover or profit, loss of clientele or goodwill, loss of opportunity, the cost of obtaining a substitute product, service or technology, in connection with or arising from the failure to perform or the faulty performance of the services.
In any event and whatever the grounds for DASHDOC’s liability, damages and any compensation due by DASHDOC to the Customer, all things considered, shall not be allowed to exceed the amounts paid to DASHDOC by the Customer over the last twelve (12) months prior to the incident.
The Parties hereby acknowledge that the Contract price reflects the allocation of risks arising from the Contract, as well as the economic balance sought by the Parties, and that the Contract would not have been concluded on these terms without the liability limits as defined in the Contract. The Parties hereby agree that the liability limits shall continue to apply even in the event the Contract is terminated or rescinded, regardless of reason.
13.2. Customer's liability
The Customer shall use the Services under his control, at his own direction and under his own responsibility. The Customer hereby warrants the Users’ compliance with the terms of the Contract.
The Customer consequently hereby acknowledges he is liable for:
- the implementation of all processes and measures to protect the Users' computer equipment, in particular against any viruses and extraneous intrusions;
- downloading the latest version of the Solutions;
- the choice of access provider or telecommunication medium, the Customer being responsible for the related administrative requests and for taking out the necessary subscriptions, the cost of which he alone shall defray;
- the appointment of a SPOC to communicate with DASHDOC and the updating of this contact;
- the use of secure user IDs and passwords by the Users and the protection and confidentiality of the said user IDs and passwords;
- the inability of staff members or unauthorised third parties to access the Services;
- errors made by the Users when using the Services and connecting to the Services;
- the quality and the electronic transmission of the Content when data are sent across the telecommunications networks and, more generally, the quality and reliability of the telecommunication links between the Customer's IT tools and the point of access to the Services;
- the conservation of the Content and other data and information that are specific to him and that are derived from the Services, their conservation on the Application Solutions in a way that is not considered as legal archive-storage and only serves the purpose of online consultation and/or downloading.
In particular, the Customer hereby acknowledges that it is his sole responsibility to fill in all the Content within the Application Solutions that is specific to him or to the Users, to set up and configure his Account in real time in line with any changes in his situation or that of the Staff Members and to update these changes in real time, DASHDOC not being responsible for the verification of this Content, as the processing of this Content is carried out automatically by the Application Solutions.
Consequently, the Customer hereby acknowledges that any incompleteness, inaccuracy or omission may result in errors in the documents and data from the Services provided by DASHDOC without this causing DASHDOC to be liable in this regard.
The Customer alone shall be liable for the ramifications of his actions, faults, errors or omissions as well as those of the Users, who may seek to hold him liable in this respect.
14 Termination
14.1 Termination at the Customer's initiative
The Customer may request for the present Contract to be terminated by sending his request via the "HELP" section accessible on his Administrator Account no later than fifteen (15) days before the end of the current contract period or by specifying the date on which he wishes to terminate the Contract if this is later than the end of the current contract period.
In the event of a request for termination in compliance with the aforesaid procedure, the termination shall take effect at the end of the current contract period or on the effective date of the termination specified by the Customer if this occurs later.
Where the Contract is not terminated in the ways and situations outlined above, the Contract shall be tacitly renewed for contract periods equal to the Term specified in the Subscription Contract.
14.2 Termination by reason of non-compliance
Where one of the Parties fails to comply with any of its obligations under the Contract, the other Party shall be within its rights to serve notice of default on the former for failure to comply with its obligations. In the event of non-compliance with its obligations within fifteen (15) days from the date of receipt of the formal notice of default, the other Party shall be within its rights to terminate the Contract by operation of law with immediate effect without the need for it to observe any legal formalities and without prejudice to any damages that it may wish to claim.
In case of gross negligence and/or repeated breaches by the Customer of his obligations, DASHDOC shall be within its rights to unilaterally terminate the Contract by operation of law at any time, without prejudice to its rights to claim damages, by simple written notification.
14.3 Effect of termination
Where the Contract is terminated, for whatever reason, all sums payable by the Customer to DASHDOC on the date on which the termination takes effect must be remitted to DASHDOC, whereby the termination shall constitute grounds for any refunds of sums paid to DASHDOC by the Customer in the performance of the Contract.
On the effective date of termination, the delivery of the Services and access to the Solutions shall end.
Where the Contract is terminated, DASHDOC hereby undertakes to return the Customer's data in compliance with article 17.
15 Personal data
The Parties hereby undertake to comply, each for its own account, with all provisions applicable to them under the regulations relating to the protection of personal data, with particular reference to the provisions of Act No. 78-17 relating to information technology, computer files and freedoms and those of Regulation (EU) 2016/679 of the European Parliament and the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
When the Customer imports, sends, uploads or stores personal data on the Platform, DASHDOC shall be considered to act as a sub-contractor of the Customer. Said personal data processing operations are carried out by DASHDOC exclusively on behalf of and at the instruction of the Customer, who consequently hereby affirms that he is the "data controller" within the meaning of the regulations on personal data.
The Customer instructs DASHDOC to process the personal data of the Customer for the purpose of providing the Services and, as applicable, to improve the Platform, the Solution and, more generally, DASHDOC’s products and services, throughout the term of the Contract increased by two months, in compliance with article 28 below.
In the context of the performance of these personal data processing operations, DASHDOC may be required to process the following categories of data:
- the contact details of a natural person working in the haulage company or the company consigning (dispatching) the goods (surname, first name, e-mail, telephone number);
- the full names of the drivers, the vehicle's registration number, the expiry date and number of the driving licence;
- geolocation details of the driver with a time stamp at the time of departure and arrival;
- the signature of the drivers and the consignees of the goods;
- when telematics is enabled, geolocation data, mileage, time stamps, etc.
The Customer hereby affirms he is duly aware of his obligations as a data controller, in particular his possible obligations to keep a register of his processing activities and to appoint a data protection officer, as well as his duty of notification in the event of data breaches, his obligation to carry out impact analyses relating to privacy protection and to consult the supervisory authority beforehand, on the understanding that the above listing is not exhaustive and that it is for the Customer to make inquiries and do everything necessary to comply with the aforesaid regulations.
The Customer hereby undertakes to comply with the above obligations. DASHDOC waives all and any liability for any failure on the part of the Customer to meet his obligations.
In particular, the Customer hereby affirms that he is duly aware that personal data may be collected or processed only in compliance with the regulations relating to the protection of personal data, with particular reference to the provisions of Act No. 78-17 and Regulation (EU) 2016/679 as referenced. Consequently, the Customer shall inform the data subjects of the processing of their data and ensure, at his own responsibility, that the processing of such data is carried out on a legal basis and that, as applicable, the data subjects have given their consent for their data to be collected and processed as well as inform said data subjects when their data are transferred to third parties. It is the Customer's responsibility to inform the data subjects of their rights with respect to their data and the manner in which these rights may be exercised. The Customer shall therefore defend, indemnify and hold DASHDOC harmless against any recourse by third parties with regard to the processing of personal data by the Solution.
In its capacity as a sub-contractor, DASHDOC hereby undertakes:
- to process personal data only at the documented instruction of the Customer, including transfers of personal data to a third country or international organisation, unless required to do so pursuant to EU or French law. In that case, DASHDOC shall inform the Customer of this legal obligation prior to processing, unless the law concerned prohibits such sharing of information for important reasons of public interest;
- to process personal data only for the purpose of performing the present Contract and improving the Platform, the Solution and, more generally, the products and services of DASHDOC;
- to warrant performance by the persons authorised to process personal data under the present Contract of the duty to observe confidentiality or to ensure they are subject to an appropriate legal duty of confidentiality;
- to put in place all measures required pursuant to article 32 of Regulation (EU) 2016/679, including implementing appropriate technical and organisational measures to ensure a level of security that is on a par with the risk;
- where the services of one or several sub-contractors are enlisted, other than those listed in the present Contract, to inform the Customer of the planned addition or replacement of a given sub-contractor, thereby giving the Customer the opportunity to object to the proposed change. DASHDOC must be notified of any objections by the Customer in writing within eight (8) working days of receipt of the request for approval of the sub-contractor concerned. In the absence of a response from the Customer beyond this period of eight (8) working days, the Customer shall be presumed to have accepted the enlistment of said sub-contractor;
- where a sub-contractor is called upon by DASHDOC to carry out specific processing activities on behalf of the Customer, to impose the same data protection obligations on the said sub-contractor as those set out in the present article, in particular as regards providing sufficient guarantees as to the implementation of appropriate technical and organisational measures so that the processing complies with the requirements of the personal data protection regulations;
- in consideration of the nature of the processing, to assist the Customer, through appropriate technical and organisational measures, as widely as possible, in fulfilling his obligation to comply with requests made to the Customer by data subjects who exercise their rights pursuant to Chapter III of Regulation (EU) 2016/679 (right to information, right of access, rectification, erasure and objection, right to restriction of processing, right to data portability, right not to be subject to an automated individual decision, including profiling). Where a data subject of the processing of personal data should contact DASHDOC directly to exercise their rights, DASHDOC shall transmit this request to the Customer as soon as possible by e-mail to the contact address specified in the Quote, or to any other address specified by the Customer;
- to assist the Customer in ensuring compliance with the obligations set out in articles 32 to 36 of Regulation (EU) 2016/679, in consideration of the nature of the processing and the information available to DASHDOC, and in particular to assist the Customer, if necessary and upon request, in ensuring compliance with his obligations relating to the notification of personal data breaches and the performance of data protection impact assessments;
- depending on the Customer's choice, to delete all personal data or return them to the Customer at the end of the services relating to the processing, and to destroy existing copies, unless Union law or the law of the Member State requires the personal data to be kept on record;
- to immediately inform the Customer if, in the opinion of DASHDOC, an instruction from the Customer constitutes a violation of the personal data protection regulations;
- where DASHDOC were to become aware of a personal data breach in the context of the Contract, DASHDOC hereby undertakes to notify the Customer of this data breach as soon as possible and to provide the Customer with all information to enable him to meet his own obligations.
It is hereby expressly agreed between the Parties that, from the Contract date, DASHDOC shall use the company GOOGLE as a sub-contractor for the purpose of hosting the Database. In this context, personal data may be transferred by GOOGLE to the United States. This transfer shall be governed by standard contract clauses and specific organisational and technical guarantees: https://gsuite.google.com/terms/dpa_terms.html?_ga=2.83350230.1932710511.1549449160-1768071689.1549389469 . These measures include data encryption, the implementation of the HTTPS protocol for access to the Google Drive and Google Suite sites, security updates and data backup.
The data subjects of the processing operations have various rights in respect of the protection of their personal data (in particular the right of access and rectification of details relating to them) which may be exercised by e-mail sent to [email protected] or by post sent to: DPO, DASHDOC SAS, 5 avenue du Général De Gaulle in 94160 Saint-Mandé, along with a photocopy of their identity card.
DASHDOC hereby undertakes to keep an up-to-date record of the processing of the Customer's personal data which it carries out as the data controller.
Moreover, the Customer may consult the privacy policy page at https://dashdoc.eu.
16 Transfer, sub-licensing
The Customer hereby acknowledges that the Contract is concluded intuitu personae. Consequently, the Customer is not permitted to transfer all or part of the rights and obligations under the Contract without the prior written consent of DASHDOC, whether in the context of a partial or full transfer, a sub-licence or any other Contract which sets out the transfer of such rights and obligations.
DASHDOC shall remain free to transfer all or part of the Contract, without the Customer’s prior consent and after having notified the latter, to the benefit of any affiliated company or any third party of its choice, whether in the context of a partial or full transfer, a sub-licence or any other Contract which sets out the transfer of said rights and obligations.
17 End of contract
Where the contractual relationship were to cease, regardless of reason, DASHDOC may, at the Customer's request, return all data and information relating to the Customer. DASHDOC shall bring its best efforts to bear to return the data and information as soon as possible.
The Customer's request to that effect must be entered within thirty (30) calendar days at the latest from the end of the Contract, regardless of reason.
All of the Customer's data and information shall be made available to the Customer in the form of a download or, if the volume is too large, by sending an external data carrier.
DASHDOC may provide a quote in the event of a special request from the Customer that were to engender additional costs for the transfer of its data and information (e.g. conversion into a complex format).
In the absence of a request for such a restitution within sixty (60) days after the Contract has run its full course or its termination regardless of reason, the Customer's Content shall undergo an erasing process intended to render said Content unusable, unless European Union law or French law requires certain personal data to be kept on record.
18 Confidentiality
Subject to the provisions of article 20, the Parties hereby agree that the Contract, and the Subscription Contract in particular, are confidential, as a result of which they shall refrain from disclosing the terms thereof to anyone else.
The Parties shall also refrain from disclosing information of a confidential nature exchanged between them in the performance of the Contract, it being specified that all documents, information and data communicated by one Party to the other Party in the performance of the Contract in writing and/or orally, on any medium whatsoever and in any form whatsoever, in particular graphs, drawings, plans, reports, customer lists, price lists, results, minutes of meetings, instructions and other items, shall be deemed to be information of a confidential nature.
The duty of confidentiality under the present article shall not cover documents, information and data:
- in the public domain on the date when they were communicated or that entered the public domain after the said date;
- that have been provided to a Party on a non-confidential basis by a third party;
- which one Party is required to provide pursuant to a statutory or regulatory obligation, a court decision or at the request of a public authority.
Confidential information may also be communicated with the prior written consent of the other Party.
The Parties hereby agree that, unless otherwise stated in the Subscription Contract, the existence of their contractual relationship does not constitute confidential information and may be publicly disclosed.
Each Party hereby undertakes to disclose information of a confidential nature only to its employees, agents, sub-contractors and authorised consignees and to warrant performance by the said parties of the same obligation to prevent unauthorised disclosure in at least the same way as agreed under the present Contract and to defend, indemnify and hold the other Party harmless against any disclosure by the latter parties.
The Parties hereby undertake to warrant performance of this duty of confidentiality in respect of information and data of all kinds exchanged between them under the Contract by their sub-contractors, staff and other third parties.
Any breach by either Party of its undertakings under the present article shall constitute a material breach of its obligations, giving rise to liability on its part and entitling the other Party to compensation for the loss and harm suffered as a result;
The Parties hereby undertake to comply with the obligations arising from the present article for the entire term of the Contract and for five (5) years following the expiry or termination of the Contract.
19 Third-party content, services and websites
The Services may enable the Customer to link and transfer Content or third party content to third party websites and other products and services. The Customer hereby acknowledges that DASHDOC has no control over and is not responsible in any way for these third party services and the use made thereof by the Customer or his Users, except as otherwise specified in the Subscription Contract or its addenda or appendices, if any.
Any third party content which DASHDOC makes available to the Customer is provided "as is" without warranty or verification, which the Customer hereby acknowledges and accepts.
Furthermore, the Customer hereby acknowledges that the nature and content of third party services and content provided through the Services may change at any time during the performance of the Contract.
20 Commercial reference
Within the framework of the performance of the Contract, the Parties hereby agree that DASHDOC may mention the Customer’s company name and/or commercial name and reproduce the latter’s brands and logos by way of reference in all communications and media, in particular on its websites.
This being the case, the Customer hereby grants DASHDOC a non-exclusive licence to use his trademarks, logos, company name and trade name by way of public and commercial reference aimed at DASHDOC’s own customers.
21 Legal and administrative authorisations
The Customer hereby offers DASHDOC assurances that it holds all the authorisations, licences and permits required by law and regulations for the use of the Solution and services provided by DASHDOC and the processing operations carried out by the Solution.
22 Peaceful possession guarantee
DASHDOC hereby offers assurances that it holds the necessary and appropriate intellectual property rights in respect of the Solution, the Platform, the Application and its Documentation, as well as in respect of the structure of the Database specific to the Solution, in order to grant the Customer the right of use of the ownership rights in respect of the Solution. Consequently, DASHDOC hereby offers assurances that the Solution shall not constitute an infringement or unfair competition.
DASHDOC hereby guarantees the peaceful use and enjoyment of the Solution and its Documentation. As such, DASHDOC hereby undertakes to assume full liability for any claims, demands or recourse against the Customer from any third party in connection with the use of the said elements. DASHDOC shall defray all costs and damages which the Customer might be ordered to pay in a final court decision as might result therefrom.
The Customer shall inform DASHDOC in writing as soon as it becomes aware of any such claims, demands or proceedings made or brought on such grounds before the courts or otherwise. Unless with DASHDOC’s prior written consent, the Customer shall not pay the third party in question, negotiate with said party or its agents with a view to an amicable settlement, or seek mediation, arbitration or any other amicable process, and undertakes to act in compliance with any reasonable request from DASHDOC as to the conduct of the litigation strategy to be adopted. DASHDOC must be able to defend its own interests and those of the Customer. In order to do so, the Customer is required to loyally cooperate in the said defence by providing all the elements, information and assistance necessary to conduct said defence. Where the Customer fails to comply with his obligations, he shall forfeit all compensation.
Where a ban on (the further) use (of the Solution) is pronounced as the outcome of an infringement action or results from a settlement signed with the plaintiff in the infringement proceedings, DASHDOC may, at its own discretion and at no additional cost to the Customer, either:
- obtain the right for the Customer to continue to use the Solution;
- modify or replace the infringing Solution or the infringing element with an equivalent solution or element that is not the subject of an infringement action. In that case, DASHDOC shall inform the Customer of the time required to implement the new Solution or to bring the modifications, and of the possible impact on the functionality and performance of the Solution. Where access to the Services is interrupted in order to carry out said modifications or to implement the replacement, the Customer shall be within his rights to request a proportionate refund of the fee paid in proportion to the length of time corresponding to the duration of the interruption;
- terminate the Quote and cease access to the Solution, notwithstanding the Customer's right to request a refund of the sums paid in respect of the fee in proportion to the duration of the interruption.
The Customer hereby affirms that he is the legitimate holder of all rights of use, modification and / or, more generally, intellectual property rights relating to the Data and / or Content disseminated or posted online on the Platform or the Database, and any documents or information made available to DASHDOC under the present terms and conditions. In the event of a claim put forward or brought by a third party, the Customer shall defend, indemnify and hold DASHDOC harmless against all recourse.
23 Conformity guarantee
DASHDOC hereby offers assurances as to the conformity of the Solution to the Documentation, subject to its use in compliance with the Documentation, its purpose and the instructions of DASHDOC.
DASHDOC hereby undertakes to perform its obligations with all possible care as is customary in its line of business and to comply with the rules of the art.
DASHDOC shall bring its best efforts to bear to correct any anomalies in compliance with the service levels to which it has committed.
24 Disclaimer of warranties
No warranties are given other than those expressly stated in the present General Terms and Conditions.
DASHDOC’s role is to provide the Solution, the use of which is left to the Customer’s discretion and comes at the latter’s responsibility. The services provided by DASHDOC cannot be considered as consultancy services of any kind.
The Solution is made available to the Customer "as is". DASHDOC does not offer assurances that it shall function without interruption or error. DASHDOC does not offer the Customer any assurances as to the performance, availability and continuous accessibility of the Solution. DASHDOC has a general best endeavours obligation, particularly given the hazards inherent in Internet technologies.
In this respect, DASHDOC disclaims all and any liability for any kind of unavailability of the Solution, if this is due to extraneous factors including technical reasons, network congestion, extraneous slowdowns, access speeds from computers and / or servers of Users, misuse of the Solution, Platform, Database and Application or failures on the part of Internet access providers.
Before confirming the Quote, the Customer has been able to assess the Solution and associated services offered by DASHDOC to satisfy himself that they live up to his needs, both in terms of functionality and purpose. Consequently, DASHDOC waives all and any liability for the possible unsuitability of the Solution and the associated services to the Customer’s needs.
No assurances are offered that the Solution shall evolve in line with the regulatory and statutory developments in respect of road haulage.
Apart from the cases expressly set out by law, in its capacity as the host of Content posted by the Users, DASHDOC waives all and any liability for the Content posted by the Users on the Platform, as it does not perform any upstream checks of the said Content. It is for the Customer to ensure the accuracy, truthfulness and legality of the Content his Users post on the Platform. Consequently, the Customer shall defend, indemnify and hold DASHDOC harmless against any actions, claims or proceedings, in whichever form or nature, made or brought against DASHDOC in respect of the Content hosted on the Platform.
No assurances are given that DASHDOC shall continue to operate the Solution and each new version.
Where DASHDOC were to decide to abandon its Solution, the Customer shall be informed thereof at least 60 days in advance. During this period, the Users shall be able to export their Content from the Database. At the end of this period, the Users shall no longer have access to the Content. It is up to the Users, as the "owners" of their Content, to make sure they keep a copy.
25 Non-competition clause
Throughout the term of the business relationship between the Parties, the Customer shall refrain from directly or indirectly developing software likely to compete with the Solution, including its corrected or modified versions.
26 Non-solicitation of staff
The Customer hereby undertakes not to solicit, canvass or hire, whether directly or indirectly, DASHDOC staff throughout the term of the business relationship and for a twelve-month period after the end thereof. Any breach of this obligation shall involve payment of a flat rate sum in damages based on the employee's gross annual salary.
27 Force majeure - extraneous causes
Neither Party shall be liable vis-à-vis the other party for the total or partial non-performance of its contractual obligations, insofar as such non-performance is caused by an instance of force majeure, as defined in article 1218 of the Civil Code. These provisions do not apply to payment obligations.
Where an instance of force majeure occurs, the Party prevented from fulfilling its obligations hereby undertakes to promptly inform the other Party thereof and of the probable duration of the impediment by all possible means. Said Party shall be required to make every effort to minimise the effects of this situation.
As a first step, any instance of force majeure shall suspend the performance of the order. The debtor shall not be discharged from carrying out said order, with said performance merely being suspended until the impossibility ceases. As soon as the impeding effect of force majeure ceases, the obligations of the original order shall regain full force and effect for the remaining period.
Where the duration of the instance of force majeure exceeds fifteen (15) calendar days from its occurrence, the Parties shall agree to meet in order to negotiate and establish new contract terms adapted to the circumstances. If the impediment persists for more than three (3) months and if negotiation has failed, the Quote shall be automatically terminated by operation of law (without judicial formality) and without damages to be paid by either side.
In addition, certain extraneous circumstances alien to DASHDOC which do not necessarily meet the conditions to be qualified as instances of force majeure but which act to disrupt the delivery of the services ordered (e.g. failure of the Internet and telecommunications, health crises, epidemics, pandemics, climate hazards of an exceptional magnitude, etc.) may also constitute grounds for DASHDOC to suspend compliance with its obligations and exempt DASHDOC from penalties and liability.
28 Nullity
Where any one of the clauses of the Contract is found to be invalid under an applicable rule of law or a court decision that has become final, said provision(s) shall be deemed unwritten, albeit without this causing the nullity of any other specific clause of the Contract or of the Contract as a whole.
Each Party shall act in its own name and on its own behalf as a legal person or an independent contractor, both legally and financially, and shall act in its own name and under its own responsibility. Neither Party shall have the power or the authority to bind the other Party in any way. Nothing herein shall be construed as creating a mandate, an agency, or an affiliate, agent or employee-employer relationship between the Parties.
29 Non-waiver
The fact that one of the Parties has not demanded the application of any given clause in the present General Terms and Conditions shall on no account be taken as a waiver of the rights that this Party has under this clause.
30 Applicable law and courts of competent jurisdiction
The General Terms and Conditions are governed by and interpreted in compliance with French law and expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods, known as the "Vienna Convention".
Any disputes between DASHDOC and the Customer relating to the existence, validity, interpretation, performance and termination of a Quote and/or the General Terms and Conditions, which cannot be resolved amicably, shall be brought before the courts of competent jurisdiction of the location where DASHDOC has its registered office.
ANY ACTION AGAINST DASHDOC UNDER THE GENERAL TERMS AND CONDITIONS SHALL BECOME TIME-BARRED AFTER ONE (1) YEAR FROM THE EVENT THAT GAVE RISE THERETO OR OF WHICH THE CUSTOMER WAS AWARE OR SHOULD HAVE BEEN AWARE.