Mobility Work's general terms and conditions of sale
Date of latest update: May 18, 2020
These Mobility Work’s General Terms and Conditions of Sales (hereinafter referred to as the „GTCS“) govern the relationship between Mobility Work, a simplified joint stock company with a capital of 1,554. 790, registered in the Paris Trade and Companies Register under number 820 234 599, having its registered office located at 25 rue du général Foy, 75008 Paris, represented herein by Mrs. Morgane Guinot, in her capacity as President (hereinafter referred to as „Mobility Work“) and the customers in their capacity as professionals (hereinafter referred to as the „Customers“, as defined below) in the context of subscribing to the services (the „Services“) offered on the Application accessible at https://app.mobility-work.com and on iOS and Android (the „Application“).
Mobility Work and the Customer are hereinafter referred to individually as a „Party“ and collectively as the „Parties“.
1.1 The purpose of these GTCS is to determine the conditions under which Mobility Work grants the Customer, who accepts it, the non-transferable, non-exclusive and personal right to access the Application and use the Services as defined herein.
1.2 These GTCS are reserved and only applicable to professionals, to the exclusion of consumers. The Customer thus undertakes to make purchases exclusively in direct connection with its professional activity. As Customers are professionals, consumer law does not apply to these GTCS.
The Customer declares before any subscription to have read these GTCS and declares to accept them.
The Customer undertakes to respect and to ensure that his intermediaries respect all the obligations incumbent upon him as a result of these GTCS, this obligation being considered as an obligation of result.
Unless otherwise specified in writing by Mobility Work, subscribing to the Services with Mobility Work implies the Customer’s full and unreserved acceptance of these GTCS and the express exclusion of any other previous conditions or conditions such as the general purchase conditions that may have been established by the Customer or any document issued by the Customer.
In the event of any contradiction between these GTCS and any general purchase conditions or any other general or special conditions of the Customer, these GTCS shall prevail.
1.3 The GTCS are made available to the Customer on the Application, where they can be consulted directly. They may also be made available on request brought by telephone, e-mail or post.
1.4 By subscribing to the Services, the Customer acknowledges having read and accepted these GTCS. In addition, by subscribing to the Services, by virtue of these GTCS, the Customer certifies that it is a professional.
The validation of the subscription to the Services by its confirmation is equivalent to the Customer’s adherence to the GTCS in force on the day of the order.
Mobility Work reserves the right to modify its GTCS at any time. In the event of a change to the GTCS, the GTCS in force on the date of the order shall apply.
Should any part of the GTCS be unlawful, invalid or unenforceable for any reason whatsoever, the provisions in question shall be deemed to be unwritten, without prejudice to the validity of the other provisions, which shall continue to apply.
The fact that Mobility Work does not avail itself of any of the provisions of these GTCS at a given time shall not be interpreted as a waiver of the right to avail itself of them at a later date.
SUBSCRIPTION TO SERVICES
2.1 Mobility Work provides Customers with a set of Services accessible on the Internet, in Saas mode only, and directly on the Application.
The Services are in principle accessible by the Customer and its Users (as defined in the GTU) 24 hours a day and 7 days a week. However, Mobility Work may put the Application on maintenance, in particular in the event of technical problems or with the aim of improving the technical service provided, in accordance with the terms and conditions defined in the GTU. This may temporarily lead to a cut in access to the various Services without this giving rise to any right to compensation on any grounds whatsoever.
Except in the case of a framework agreement or any other agreement concluded with the Customer for another term, the Customer may take out a subscription in the form of a paying licence valid for each User who is a natural person per monthly or annual period, renewable by tacit agreement (the „Licences“).
Subscriptions will be automatically renewed for the same duration without cancellation by the Customer at least ten (10) days before the anniversary date of the subscription by registered letter with acknowledgement of receipt, under the conditions provided for in Article VI hereof and recalled in the GTU.
2.3 Additional Services and modification or deletion of Services
The Application and Services are subject to change.
Mobility Work may offer additional services or new functionalities related to the Services. These may be subject to additional, separate or supplementary terms and conditions.
Mobility Work reserves the right to modify or delete, at any time, without prior notice and at its sole discretion, all or part of the Services offered on the Application.
Confirmation of the subscription implies full and complete acceptance of these GTCS according to the terms hereof and forms a contract between Mobility Work and the Customer.
The prices of the Services subscribed to are those in force on the day of subscription. They are denominated in euros and are calculated exclusive of tax. Consequently, they shall be increased by the rate of VAT and/or any other tax and/or charges applicable on the date of acceptance of the subscription.
Mobility Work reserves the right to change its rates at any time, subject to informing the Customer within a period of at least one (1) month. Unless the Customer expressly refuses, the changes will come into force and will be deemed to have been accepted by the Customer.
Prices may be modified in the event of legislative and/or regulatory changes likely to lead to price variations such as: modification of the applicable VAT rate, introduction of new taxes, modification of an existing tax, etc…
DISCOUNTS AND REBATES
The proposed tariffs include any discounts and rebates that Mobility Work may grant.
TERMS AND CONDITIONS OF PAYMENT
Mobility Work invoices are payable without discount for early payment:
For Licences paid on a monthly basis: within fifteen (15) days of receipt; and
- For Licenses paid on an annual basis: within thirty (30) days of receipt.
Mobility Work invoices are issued in Euros.
The Customer must pay the total amount of each invoice, including all taxes mentioned thereon, without being able to set off any sums due or claimed to be due from Mobility Work. The terms of payment are defined by Mobility Work and are subject to change. They may be quoted in accordance with the payment terms defined by Mobility Work.
The Customer agrees to pay all taxes, government fees, transfer fees and exchange charges applicable to all payments made.
Mobility Work may use the services of a service provider. In this case Mobility Work will make the general conditions of the service provider available to the Customer.
The Customer undertakes to pay all invoices upon receipt and without deduction. Penalties for late payment equal to three (3) times the legal interest rate are automatically due on the day following the payment date stated on the invoice without the need for a reminder. This penalty is calculated on the amount including tax of the amount remaining due, and runs from the due date of the price without the need for any prior reminder.
Any delay in payment shall result in the payment of a flat-rate compensation for collection costs of forty (40) euros. If the recovery costs are higher than this lump sum, additional compensation shall be due on presentation of supporting documents. In the event of non-payment, Mobility Work reserves the right to suspend access to all or part of the Application, in whole or in part, and/or to terminate the contractual relationship between Mobility Work and the Customer ipso jure and without further formality.
In the event of a dispute over an invoice, payment of the disputed invoice shall remain due. If the dispute is accepted, a credit note shall be sent to the Customer as soon as possible.
The Customer shall fulfil his payment obligations and accepts that Mobility Work shall keep the said payment information in accordance with the applicable legal conditions and deadlines.
Failure to pay will result in the automatic termination of this agreement.
The Customer also accepts the following:
Depending on the place of transaction, different exchange transaction fees or prices (e.g. exchange rates) may apply.
- The Customer will be automatically billed with his payment method at the beginning of each subscription period for the fees and taxes applicable to that period.
DURATION – TERMINATION – CONSEQUENCES OF TERMINATION
Subject to any framework agreement or any other special agreement agreed with the Customer, the contract shall take effect on the date on which the Customer registers to use the Application, and shall be tacitly renewable for successive periods of one (1) month or one (1) year, depending on the subscription chosen.
Subscription to the Services shall be automatically renewed under the conditions defined above unless the Customer gives notice of termination to Mobility Work at least ten (10) days before the anniversary date of the subscription.
6.2 Termination of the contract
6.2.1 Termination by the Customer
Subject to any framework contract or any other special agreement agreed with the Customer, the Customer may notify its desire to terminate this Agreement for any reason whatsoever by registered letter with acknowledgement of receipt, or directly by deleting its account via the application in its profile parameters according to the terms and conditions defined in the GTU.
6.2.2 Suspension of Services – Termination due to Mobility Work
Subject, where applicable, to any framework agreement or any other special agreement agreed with the Customer, Mobility Work shall have the right to terminate this Agreement and/or suspend access to the Application with immediate effect for any legitimate reason and at any time, by simple notification, temporarily or definitively by deleting the account of the Customer and/or its Users, and in particular in the event of breach of any provision hereof by the Customer, or in the event of breach of the GTU by the Customer or any User under the terms and conditions of the GTU.
Mobility Work may terminate the contract definitively and immediately, for any legitimate reason, and in particular in the event of violation by the Customer of any of the stipulations set forth herein, without prejudice to its rights to claim any damages and interest.
6.3 Consequences of cancellation
6.3.1 In the event of termination hereof, all amounts owed by the Customer to Mobility Work in respect of the use of the Services shall become immediately due and payable.
No indemnity, compensation or damages of any nature whatsoever shall be due by either Party to the other Party.
In the event of expiry or termination of the contract, the License(s) subscribed by the Customer shall be automatically terminated.
6.3.2 The total amount due by the Customer for the current month or year at the time of termination or according to the terms and conditions of any framework agreement or any other special agreement agreed with the Customer, as the case may be, remains due. As payments are made in advance, no sum will be refunded, whatever the cause of termination.
6.3.3 In the event of termination of the contract, Mobility Work may assist the Customer to enable him to resume management of his data. Payment of the reversibility service provided by Mobility Work will be made on the basis of the time spent by Mobility Work employees or on the basis of a financial proposal after prior acceptance by the Customer.
6.3.4 Any other terms applicable in the event of termination of the contract concerning the cessation of use of the Application, in particular concerning the Customer’s data and the personal data of its Users, are defined in the GTU.
The Application, as well as all interfaces and applications developed by Mobility Work to access the Services, the Application and all other sites or software of Mobility Work, available and future, on all present and future operating systems and platforms, as well as all elements relating to the intellectual property rights of Mobility Work, including all present and future trademark registrations, logos, drawings, images, photographs, illustrations and all other elements and associated rights remain the exclusive property of Mobility Work.
The Services are protected by intellectual property law, from French, European or international sources. Nothing herein or in the GTU shall give the Customer the right to use the name of Mobility Work, nor the trademarks, logos, domain names and other distinctive attributes of Mobility Work. All right, title and interest in and to the Services is and shall remain the exclusive property of Mobility Work.
The content (other than the Content of the Customer, its Users and the content of other customers and users) included or accessible on and/or through the Application, including any text, graphics, logo, name, trademark, designation, tab, feature, image, sound, data, photograph, graphic, and any other material or software remains the exclusive property of Mobility Work. It is protected by intellectual property law and is subject to applicable laws and regulations.
Under no circumstances may these elements be downloaded, copied, altered, modified, deleted, distributed, transmitted, broadcast, sold, rented, licensed or exploited (in whole or in part) in any way whatsoever without the express written consent of Mobility Work. The Customer agrees not to use or exploit these elements for purposes other than those referred to herein and in the GTU. In addition, except in the case of mandatory legal provisions of restrictive application, the Customer, in particular through its Users, is not authorized to modify, improve, edit, translate, decompile, disassemble or create one or more derivative work(s) from the Application (in whole or in part), or unless this possibility has been expressly granted by Mobility Work or by the owners of such content(s), in a separate agreement.
Mobility Work expressly reserves the exclusive right to intervene on the Application to enable it to be used in accordance with its intended purpose and in particular to correct errors.
Mobility Work declares that it is the owner of all intellectual property rights relating to the Application.
In particular, Mobility Work guarantees :
that the Application does not constitute an infringement of a pre-existing work;
- that it has respected and will respect the intellectual property rights of third parties, in particular copyright, design rights, patents and trademarks.
In this respect, Mobility Work guarantees the Customer against any action, claim, demand or opposition from any person invoking an intellectual property right or an act of unfair and/or parasitic competition, which would have been infringed by the execution of this agreement.
For its part, the Customer undertakes to immediately notify Mobility Work of any infringement of the Application of which it becomes aware, Mobility Work being then free to take the measures it deems appropriate.
Finally, Mobility Work may use open source software and make it available to the Customer in compliance with the licenses governing it. The Customer may use such software subject to compliance with these same conditions.
The Customer, prior to subscribing to the Services, declares that it has full legal capacity and meets all the conditions required by Mobility Work enabling it to commit itself under these GTCS. Mobility Work may in no case be required to verify the legal capacity and professional qualities of the Customers.
8.2 Use of the Application – Limitation of liability
The Customer is solely responsible for the use it makes of the Services, in particular concerning the use and interpretation of the information made available by Mobility Work, as well as the acts and advice it derives from this information in the context of its professional practice.
Mobility Work declines all responsibility for the results obtained from the use of the Application and Services by the Customer and its Users.
Mobility Work cannot be held liable towards the Customer for any material or physical damage, direct or indirect, to the Customer and/or the Users, which may result directly or indirectly from the use of the Services and the Application, and the Customer shall hold Mobility Work harmless from any claim in the event, in particular, of damage suffered by the Users or the Customer as a result of the use of the Services, loss of opportunities or business income related to the operation or lack of operation of the Application.
Mobility Work implements all reasonable measures relating to the provision of the Services to maintain a safe, secure and error-free environment. However, Mobility Work does not guarantee that the Services will always operate without interruption, delay, or imperfection.
Mobility Work shall in no way be liable for any harmful consequences that may arise from Customer data and content provided by the Customer.
Mobility Work is not obliged to compensate for the damaging consequences of faults committed by the Customer, Users or third parties in connection with the execution of the Services.
Under no circumstances shall Mobility Work be obliged to compensate for immaterial or indirect damage such as (but not limited to: operating loss, loss of profit, loss of opportunity, commercial loss).
In any event, the possible financial liability of Mobility Work, if it were to be determined, may not exceed the sums paid by the Customer for the Services for which Mobility Work is liable, and within the limit of the sums paid by the Customer for the last three (3) months of licenses paid to Mobility Work on the date of occurrence of the event giving rise to liability, and in the case of a subscribed licence term that is shorter than 3 months, the amount paid for the subscription to the said licences on the date of occurrence of the event giving rise to liability, subject to payment by the Customer, where applicable, of all outstanding invoices. Mobility Work shall not be liable for breakdowns or damage resulting from the contamination of the Customer’s computer system by viruses, attacks and malicious acts by third parties.
8.3 Operation of the Application
Mobility Work reserves the right to suspend the operation of the Application or any Service.
RIGHT OF WITHDRAWAL
If the Customer is a professional purchasing within the framework and for the needs of his main and usual professional activity, there is no right of withdrawal.
If the contract between the Customer and Mobility Work is concluded off-premises, does not fall within the Customer’s main field of activity, and does not employ more than five (5) employees, the Customer has a withdrawal period of fourteen (14) days from the date of conclusion of the contract or from receipt of the Services, by notifying Mobility Work of his decision to withdraw by means of an unambiguous declaration stating his name, address, telephone number and e-mail address.
The information related to access to the Application and Services, including certain personal data of the Customer and its Users, is subject to automated data processing, according to the terms and conditions set forth in the Mobility Work Data Use and Protection Policy, and in compliance with the applicable laws and regulations regarding the protection of personal data (the „Applicable Regulations“), and in particular on the date hereof the provisions of Regulation 2016/679 of 27 April 2016 relating to the protection of individuals with regard to the processing of personal data and the free movement of such data (the „RGPD“ Regulation) and the French Data Protection Act of 6 January 1978 as amended by the Act of 20 June 2018 relating to the protection of personal data (the „LIL“).
In particular, when a Party constitutes a data controller within the meaning of the Applicable Regulations and thus decides on the purposes and means of processing Personal Data, that Party undertakes to :
- a) Process the Personal Data in a lawful, fair and transparent manner with respect to the persons concerned;
- b) Collect Personal Data for specified, explicit and legitimate purposes and not further process the Personal Data in a way incompatible with those purposes;
- c) Process Personal Data that are adequate, relevant and limited to what is necessary for the purposes for which they are processed;
- d) Process Personal Data that are accurate and, if necessary, keep them up to date;
(e) Keep Personal Data in a form which permits identification of data subjects for no longer than is necessary for the purposes for which it is processed;
(f) Process Personal Data in a way that ensures appropriate security, including protection against unauthorized or unlawful processing and against accidental loss, destruction or damage by accident, by means of appropriate technical and organizational measures.
The Parties reciprocally undertake a general obligation of confidentiality concerning all oral or written confidential information, whatever it may be and whatever the medium, exchanged in the context of the preparation and execution of the Services, except for information that is generally known to the public or that will become known otherwise than through the fault or any action of the Client.
Accordingly, the Parties undertake to :
keep all confidential information strictly secret, and in particular never to disclose or communicate, in any way whatsoever, directly or indirectly, all or part of the confidential information, to any person whatsoever, without the express prior written authorisation of the other party ;
- not to use all or part of the confidential information for any purpose or activity other than the execution of the Services;
- not to make copies of all or part of the Confidential Information without the prior written permission of the other Party;
- any information of a confidential nature will only be communicated to a third party with the prior and express written consent of the issuing Party, except in the case of a mandatory request from a competent public authority pursuant to a legislative or regulatory text.
The Parties shall guarantee compliance with this undertaking of confidentiality by all their employees, officers and managers.
This confidentiality undertaking shall remain in force after the expiry or termination for any reason whatsoever of the Parties‘ contractual relations for a period of three (3) years.
In any event, this obligation of confidentiality does not bind the Parties insofar as the Confidential Information :
- is generally accessible to the public, as well as those which become so, other than as a result of a violation of this article ;
- is obtained from third parties not subject to an obligation of confidentiality in respect of that information;
- is or has been independently developed by the Party receiving the information or was known to that Party prior to its receipt.
For the avoidance of doubt, it is understood that Mobility Work shall have the right to aggregate raw and anonymized data relating in particular to the maintenance of equipment with a view to its communication to third parties and any other users of its solutions, software and services, in accordance with the applicable GTU and any Mobility Work terms and policies.
Aggregated and anonymous data resulting from Mobility Work’s analysis of information communicated by the Customer and its users, or any other user, will not be considered Confidential Information if such data consists of a generic report relating to, among other things, machine failure rates, spare parts used, sensor information, and/or equipment maintenance, and if no link can be established between such data and the Confidential Information.
If applicable, it is also understood that the following will not be considered as Confidential Information: Any content published by the Client and its users on the platform or defined as „Public“ (as defined in the GTU).
Finally, each Party shall be entitled to disclose any Confidential Information to its insurers, auditors or lawyers, administrative or judicial authorities, upon production of the decision of the authorities concerned or when required by law.
Subject to the above provisions, Mobility Work is hereby authorized by the Customer hereunder to use the provision of the Services as a reference for its customers and prospects and to use the distinctive signs (trademark, logo) of the Customer for this purpose.
Mobility Work shall not be liable if the non-execution or delay in execution of one of its obligations described in these GTU is due to force majeure. As such, force majeure is understood to mean any external, unforeseeable and irresistible event within the meaning of French law and jurisprudence.
The present GTCS may be accessible in different languages if necessary, in the event of conflict or contradiction between the stipulations of the different versions of the present GTCS, the French version will prevail.
APPLICABLE LAW AND DISPUTES
14.1 Applicable law
These General Terms and Conditions of Sale and the contractual relationship between Mobility Work and the Customer are subject to French law.
In the event of a dispute relating to the existence, interpretation, conclusion, execution or breach of the contract, an amicable solution will be sought before any legal action is taken. In the absence of an amicable agreement, exclusive jurisdiction is attributed to the competent courts of Paris.