last update 21st April 2020
Article I. Object
The purpose of these General Terms and Conditions of Sale (GTC) is to define the rights and obligations of the parties related to the sale of services offered by Socialshaker (SAS with share capital of €25 530, having its registered office at 2 rue Fourier 59000 LILLE and registered with the Paris Trade and Companies Register under number 497 805 275), hereinafter referred to as “SOCIALSHAKER”, to its professional client hereinafter referred to as “CLIENT”.
They apply to all Services offered by SOCIALSHAKER, the description of which is detailed on its website www.socialshaker.com, namely Socialshaker, Timeline Contest, Socialshaker Services.
Article II. Definitions
The following terms and expressions have, unless specified to the contrary, the meaning given to them below if their first letter is in capital letters, whether in the singular or plural in these GTC or in any other document issued by SOCIALSHAKER.
- SUBSCRIPTION: refers to the licence to use the Platform and the related Services, chosen by the CLIENT according to the terms of the quote or the choice of the online offer (free or paid offers). Subscriptions are for a minimum period of one (1) year.
- PLATFORM: refers to a software developed by SOCIALSHAKER provided in SaaS mode.
- SERVICE: refers to all the services provided by SOCIALSHAKER, whether or not in the framework of a Subscription.
Article III. Scope of Application
Any Service order implies the CLIENT’s unreserved and full acceptance of these GTCs, which prevail over any other document of the CLIENT, and in particular over any general terms and conditions of purchase.
The applicable GTCs are those in force at the time the quote is signed by the CLIENT. SOCIALSHAKER nevertheless reserves the right to modify them at any time. SOCIALSHAKER will then forward the new General Terms and Conditions to the CLIENT (available, as applicable, on the SOCIALSHAKER website, an availability which will have been duly notified to him).
If the CLIENT has, exceptionally, benefited from a special condition, including a tariff, its validity period may in no case exceed one (1) year.
Article IV. SOCIALSHAKER’s commitments
SOCIALSHAKER agrees to do all possible to ensure the quality of the Services provided to the CLIENT, within the framework of an obligation of means.
The number of correspondence necessary to perform the Services is limited to two (2) returns between the parties, unless another number of correspondences has been accepted by SOCIALSHAKER under a specific condition included in the quote.
Moreover, the CLIENT acknowledges that the generation of leads is defined as follows: any end user of content generated using the Platform that has provided contact information, whether or not they have consented to the use of their data for business prospecting purposes.
Article V. Orders
The financial conditions of the Services provided by SOCIALSHAKER are indicated in the quote, as are the options subscribed by the CLIENT.
The order is final when the CLIENT
- has signed the quote and returned it to SOCIALSHAKER
- has paid online on www.socialshaker.com for the chosen subscriptions through the online subscription service.
- or has chosen the free offer online.
SOCIALSHAKER reserves the right to suspend any order from a client with which there is a dispute relating to the payment of a previous order until this dispute has been resolved.
Article VI. Financial conditions
The prices of the Services are indicated in the quote signed by the CLIENT, or on the website ou sur le site www.socialshaker.com. The prices indicated are exclusive of tax.
Any discounts or payment facilities granted by SOCIALSHAKER, indicated on the quote, are only valid for the initial duration of the Service and may only be renewed with its express written agreement.
Payment terms and delays
Invoices are issued at the time of the order.
Unless provided to the contrary, payment for SOCIALSHAKER Services is due by the CLIENT thirty (30) days from the date of issue of the invoice or on the due dates indicated on the invoice.
Any sum not paid on the due date shall automatically result in the application of late penalties calculated at the refinancing rate applied by the European Central Bank (ECB) on the first day of the benchmark six-month period plus ten (10) percentage points, without the need for a reminder, as well as the payment of a minimum lump sum indemnity of forty (40) euros, for recovery costs; SOCIALSHAKER reserves the right to claim an indemnity from the CLIENT of a higher amount for recovery costs, upon presentation of a receipt.
Moreover, any default or delay in payment shall result, fifteen (15) days after formal notice to pay, in (i) the immediate payment of all sums due by the CLIENT in respect of orders placed and not paid, (ii) the possibility for SOCIALSHAKER of suspending or interrupting, without notice, all or part of the Services ordered by the CLIENT, and (iii) the capitalisation of late payment penalties due, at the same refinancing rate applied by the European Central Bank (ECB) plus ten (10) points, as long as they are due at least for a full year.
Article VII. Intellectual Property
The Subscription packages offered by SOCIALSHAKER entail the creation by SOCIALSHAKER of software (i.e. the structure, container of modules and options accessible on the Platform and which allow the CLIENT to create personalised content) which are protected by laws in force on intellectual property, of which SOCIALSHAKER is the owner.
Any reproduction, representation or adaptation, in whole or in part, of this software is systematically subject to SOCIALSHAKER’s authorisation, which only grants the CLIENT a right to use the features of the software, which is personal, non-exclusive, non-transferable and limited to the duration of the Subscription.
The trademarks and logos of SOCIALSHAKER are registered and protected.
Any total or partial reproduction of the brands or logos of SOCIALSHAKER without its express authorisation constitutes an infringement punishable by Articles L.713-2 et seq of the Intellectual Property Code.
The databases created by SOCIALSHAKER and by the CLIENT in their capacity as producers are protected by copyright as well as by the law of 1 July 1998 transposing the European directive of 11 March 1996 on the legal protection of databases into the Intellectual Property Code.
Unless authorised in writing by the producer of the database in question, any reproduction, representation, adaptation, translation or modification, partial or complete, as well as any substantial qualitative or quantitative extraction is prohibited and penalised by Articles L.343-4 et seq of the Intellectual Property Code.
Article VIII. Personal data
SOCIALSHAKER give access to the CLIENT the compliance documents, directly accessible on the website www.socialshaker.com for the confidentiality policy, and on simple request on our contact form or by email for the other documents.
Within the framework of the provision of the Services
The CLIENT collects personal data for the purpose of setting up its commercial activities and to strengthen its CLIENT or prospect base. In this respect, the CLIENT is the data controller.
Where processes the data on behalf of and on instructions from the CLIENT, SOCIALSHAKER acts as a subcontractor.
Description of the processing
The purpose of the processing carried out within the framework of this agreement consists of the personal data collected during the use of the SOCIALSHAKER Services.
The nature of the operations carried out by SOCIALSHAKER in relation to personal data may be the hosting of the data collected by the Client, segmentation processing, e-mail forwarding or any other Service as described in the quote.
The purposes of the processing, the type of personal data and the categories of data subjects are determined by the CLIENT, at its sole discretion.
Processing activities are performed by SOCIALSHAKER for the term of this agreement.
Obligations of the CLIENT
As the data Controller, the CLIENT declares that it complies with provisions concerning data protection and in particular with the data protection act No. 78-17 of 6 January 1978, as amended, and European Regulation 2016/679 (General Data Protection Regulation or GDPR).
The CLIENT shall be solely responsible for the compliance of the content generated through the Platform (forms) and in particular for the fair and lawful collection of personal data. SOCIALSHAKER will inform the CLIENT, as far as possible, if, in its opinion, an instruction constitutes a clear violation of data protection regulations.
Obligations of SOCIALSHAKER
As a subcontractor, SOCIALSHAKER agrees to:
- Not use the data provided to it for the processing of its own purposes, nor for the purposes of third parties, and not to keep it longer than the time necessary to provide the Service(s);
- Implement physical, logical, organisational and contractual security measures to preserve the security of the data and in particular to prevent it from being distorted, damaged or disclosed to unauthorised persons;
- Take the necessary and appropriate technical and organisational measures to ensure that the CLIENT’s data is held and processed separately from that of other clients;
- Hire only personnel who have undertaken to respect data confidentiality and who have received the necessary training in the protection of personal data for the processing of the data covered by this agreement;
- Send all data and their media back to the CLIENT in a format to be agreed. The return must be accompanied by the destruction of all existing copies in SOCIALSHAKER’s information systems. Once destroyed, SOCIALSHAKER must provide evidence in writing of the destruction;
- Inform the CLIENT in advance and in writing of the identity and activity of subsequent subcontractors used by SOCIALSHAKER for the provision of the Service(s) and of any planned changes concerning the addition or replacement of these subcontractors. The CLIENT has a period of seven (7) days from the date of receipt of this information to present any objections. This subcontracting may only be carried out if the CLIENT has not made any objection within the agreed period. These subcontractors must be subject to the same obligations as those defined herein. SOCIALSHAKER remains fully liable to the CLIENT for the performance by the other subcontractor of its obligations;
- Not to transfer data outside the European Economic Area without the CLIENT’s written consent. If the transfer is authorised, SOCIALSHAKER agrees to implement the appropriate guarantees, pursuant to Article 46 of the GDPR. Moreover, if SOCIALSHAKER is required to transfer data to a third country or international organisation, under the law of the Union or the law of the Member State to which it is subject, it must inform the CLIENT of this legal obligation before processing, unless the law in question prohibits such information for important reasons of public interest;
- Immediately forward to the CLIENT any request for the exercise of the right of access, correction, deletion, limitation, portability and objection to the processing and cooperate in taking them into account;
- Notify the CLIENT of any breach of personal data by any appropriate means as soon as possible after the discovery of the breach. This notification shall be accompanied by all relevant documentation to enable the CLIENT, if necessary, to notify the competent supervisory authority of this breach;
- Collaborate with the CLIENT in carrying out privacy impact assessments and in any prior consultation with the supervisory authority.
SOCIALSHAKER shall provide the CLIENT with all necessary information to prove compliance with its obligations under this Article and to enable audits, including inspections, to be conducted by it or another auditor appointed by it, and to contribute to such audits. As applicable, these inspections or audits may only be conducted with one (1) month’s notice and may only concern the verification of compliance with this article. These audits will be conducted at the CLIENT’s exclusive cost. All costs incurred by SOCIALSHAKER will be billed to the CLIENT according to the time spent and the profile of each participant, at the SOCIALSHAKER rate in effect on the date of the audit.
Within the framework of the Subscriptions:
Hosting of personal data
It is specified that when SOCIALSHAKER is required to host personal data collected by the CLIENT within the framework of a Subscription, then this data is hosted by a subcontractor of SOCIALSHAKER, on servers located within the European Union.
Within the framework of the Services excluding Subscription:
The CLIENT acknowledges that in the provision of its Services, SOCIALSHAKER may use social networks whose data is hosted outside the European Economic Area.
Article IX. Liability
SOCIALSHAKER retains full discretion as to whether or not to object to the CLIENT’s use of the Services provided until full payment of the full principal and ancillary price has been made.
In the event of non-payment, and pursuant to Article VI of these GTC, SOCIALSHAKER may suspend or terminate the Services in question. These provisions do not prevent the transfer to the CLIENT, as soon as the Services are performed, of the risk of damage that they may cause.
Retention of title
Within the framework of the Subscriptions, SOCIALSHAKER reserves full title to the content created by the CLIENT through its modules and options it has subscribed to until the effective payment of the full price and any penalties, recovery costs and interest for late payment due by the CLIENT.
In the event of non-payment, and pursuant to Article VI of these GTC, SOCIALSHAKER may suspend or terminate the Services in question. These provisions do not hinder the transfer to the CLIENT, as soon as the subscribed modules and options are performed, of the risks of damage that they could cause.
SOCIALSHAKER is only bound by an obligation of means towards the CLIENT and does not provide any guarantee, express or implied, including any guarantee of quality and fitness for a particular purpose of the Services ordered.
Within the framework of the Subscriptions:
- SOCIALSHAKER alone bears the consequences of any claim from third parties concerning the software, namely the structure or container of the modules and options accessible on the Platform and included in the Subscription.
- The CLIENT alone bears the consequences of any claim from third parties concerning the use that the CLIENT will make of the modules and options provided by SOCIALSHAKER, as well as the personalised content that the CLIENT has created within the framework of the Subscription.
- SOCIALSHAKER undertakes to implement the appropriate technical means to ensure the security of data and their confidentiality within the framework of an obligation of means.
SOCIALSHAKER cannot therefore be held liable for any loss or damage to the integrity of data transmitted via the Internet, for any unauthorised alteration or access to transmissions or data, elements or data sent or received, or whose sending or receipt has failed, except in the event of a fault on its part.
SOCIALSHAKER is liable for bodily injury and material damage caused to the CLIENT that results directly from a fault on its part but may under no circumstances be held liable, whatever the type of liability claim brought, even if SOCIALSHAKER has been informed of their possible occurrence, unless there is a mandatory legal rule to the contrary, for indirect or what is sometimes referred to as indirect, incidental or special damages, whether tangible or intangible, consequential or not, including damages resulting from loss of profits, loss of earnings, brand damage, loss of orders and CLIENTs, loss of data or loss of use suffered by the CLIENT or by a third party.
In any event, and with the exception of personal injury caused to persons, SOCIALSHAKER’s financial liability shall be capped at the total amount of the price excluding tax paid by the CLIENT for the order that caused the damage.
This clause will be applied subject to any mandatory provisions to the contrary provided for by certain laws. In this case, liability shall be limited to the extent permitted by said applicable law.
SOCIALSHAKER may not be held liable, or deemed to have breached these GTCs, for any delay or non-performance, when the cause of the delay or breach is linked to a case of force majeure as defined by the case law of the French courts and tribunals including the interruption, suspension, reduction or disruption of electricity or other systems, or any interruption of electronic communication networks and more generally for any external cause beyond its control or by a third party.
Article X. Non-solicitation of personnel
The CLIENT is expressly prohibited from soliciting or hiring directly or indirectly any SOCIALSHAKER employee even if the initial sollicitation is made by the employee.
This prohibition applies for the term hereof and for a period of twelve (12) months after the termination date of the contractual relationship for any reason whatsoever.
In the event of a breach of this prohibition, the CLIENT shall be required to immediately pay SOCIALSHAKER, as a penalty clause, a lump sum compensation equal to twelve (12) months of the last gross monthly salary of the person solicited or hired.
Article XI. Term- Termination
Duration of Subscriptions
When a Service is subscribed to within the framework of a Subscription, the term is set out in the quote, depending on the options chosen.
Upon expiry of the initial term, these contract is tacitly renewable upon expiry for a period of one (1) year, each year, in the absence of termination notified by SOCIALSHAKER or by the CLIENT by registered letter with acknowledgement of receipt received by SOCIALSHAKER no later than one (1) month before the expiry date.
In the event of a breach by either party of any of the obligations set out herein, not remedied within thirty (30) days, of the sending of a registered letter with acknowledgement of receipt, reporting the breach, the other party may exercise its right to terminate this Agreement, subject to any damages it may claim, in accordance herewith.
Article XII. References
The CLIENT authorises SOCIALSHAKER to quote its name or the games he has created on his Platform as a professional reference.
Article XIII. Confidentiality
The parties agree to keep strictly confidential the information exchanged and all documents and elements produced in the framework of the provision of the Services.
The CLIENT agrees not to use the Services provided by SOCIALSHAKER for purposes outside the framework of their contractual relationship.
During and at the end of the provision of the Services, each party and its employees agree not to disclose to third parties, without the authorisation of the other party, the methods and tools that are the exclusive property of the other party.
Article XIV. Independence of clauses
If any part of these GTCs proves to be void, invalid or unenforceable for any reason, the term or terms in question shall be declared non-existent and the remaining terms shall retain their full force and scope and shall continue to be applicable. Terms declared non-existent will then be replaced by the terms that are closest to the content and meaning of the cancelled clause.
Article XV. Disputes, differences, claims
The parties expressly agree that in the event of any dispute, difference or claim arising hereunder, whatever the cause, and before bringing it before the competent courts, they agree to do their utmost to find an amicable solution to this dispute, within a period of less than sixty (60) days from the first notification of such dispute, difference or claim.
Article XVI. Applicable law – Assignment of jurisdiction
The GTC are exclusively subject to French law.
ANY DISPUTE BETWEEN THE PARTIES RELATING TO THEIR COMMERCIAL RELATIONS AND IN PARTICULAR TO THE CONCLUSION, INTERPRETATION, PERFORMANCE AND TERMINATION OF THE GTCs SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE PLACE WHERE SOCIALSHAKER HAS ITS REGISTERED OFFICE, EVEN IN THE EVENT OF A GUARANTEE CLAIM OR MULTIPLE DEFENDANTS.