02 53 35 83 35 suricate@mrsuricate.com

Terms of Services

 

Preamble

The purpose of the present general terms and conditions of services is to define the conditions under which the company FFBV, whose commercial name is ‘MR SURICATE’, proposes to its professional customers various services in connection with a software of ‘Web Testing’ developed by FFBV allowing the realization of automated tests of the functioning of an Internet, intranet or mobile site.

FFBV is a simplified joint stock company with a capital of 1,000 euros, whose head office is located at 7 rue Mathurin Brissonneau 44100 NANTES, registered with the NANTES Trade and Companies Register under number 814 768 321.

1         Definitions

Capitalized terms and expressions used in these Terms and Conditions shall have the following meaning:

  • ‘Customer Back-Office‘ refers to the back-office space dedicated to the Customer on the Website, in which all reports issued by FFBV regarding the results of the tests carried out are accessible.
  • Test Case’ refers to the document containing all the detailed information necessary for FFBV performance to perform the Services, referred to in Article 4.
  •  The “test cases” are established by FFBV and validated jointly with the client when the contract is signed.
  • ‘Test suite’ refers to the document containing all the detailed information necessary for FFBV to perform the Services, referred to in Article 4.

The ‘test suite’ is established by FFBV following the ‘Test Case’, the customer having two weeks to validate it jointly with FFBV before the beginning of the ‘setup’.

  • Customer’ refers to the legal entity signing the Special Conditions using the Services offered by FFBV.
  • ‘User’ refers to the natural persons entrusted by the Customer with the operation of the Software on their behalf.
  • ‘General Conditions’ refers to the present general conditions of services, applicable exclusively to the relationship between FFBV and the Customer in the context of the use of the Software on the Customer’s Production or Pre-production/Release Platform.
  • ‘Special Conditions’ refers to the special conditions agreed between FFBV and the Customer and whose purpose is to supplement the present General Conditions, notably by specifying the nature and pricing conditions of the Services provided to the Customer. The Particular Conditions are materialized by an estimate, drawn up at the Customer’s request, accepted and signed by the Customer.
  • ‘Agreement’ refers to all the General Terms and Conditions and the Special Terms and Conditions. The conclusion of the Agreement is materialized by the confirmation of the Special Conditions by the Customer, entailing his full and unreserved acceptance of the General Conditions.
  • ‘Software’ refers to the ‘Web Testing’ software developed by FFBV in SaaS (‘Software as a Service’) mode, accessible on the Website, allowing the realization of automated tests by the FFBV team of an internet, intranet or mobile site of the Customer. Only the reporting part (results and KPIs) of the software is accessible by the Customer.
  • ‘Offer’ refers to the specific services provided to the Customer by FFBV. Offers being chosen between ‘Production’ and/or ‘Testing Environment’ with a maximum number of scenarios per offer. The Customer may add scenarios to their offer on a monthly basis by sending a simple request by e-mail to FFBV.
  • Setup’ refers to the period starting from the creation of the first scenario to the finalization of the last scenario created as provided for in the ‘Test Suite’ previously validated by the customer.
  • ‘Scenarios’ refers to the browsing scenarios created by FFBV to test the elements and functionalities of the Customer’s website, intranet and/or mobile site or the services used by the Customer (including the pages, buttons, forms, images, adding to the shopping cart, login, ajax and payment) and, where applicable, to identify any malfunctions (‘bugs’).
  • ‘Maintenance minor amendment’ Maintenance’ refers to 1. the update of scenarios in the event of identified false malfunctions or changes to the Customer’s Internet, intranet or mobile site, 2. the services used by the Customer, 3. the reproducibility and reporting of errors by email, telephone or via the Customer’s information system, 4. the various email and telephone exchanges with the Customer concerning the services subscribed to.

This maintenance is carried out by the operational department of FFBV within a maximum period of forty-eight (48) hours, on the working days and working hours of FFBV following the identification of the action to be carried out. The maintenance of a scenario only concerns its updating, not modifying its customer itinerary which is initially established in the ‘test suite’.

FFBV will not be able to ensure this one if the customer has modified one or several scenarios by themselves via the software.

The duration of monthly maintenance performed by Mr Suricate’s teams is limited to a fixed price defined in the Special Conditions, beyond which an additional estimate will be proposed to the customer.

‘Redesign / major modification’ refers to a modification of one or more ‘scenarios’, this modification applies to the customer journey initially established in the ‘Test Cases’ and requires work equivalent to a second ‘Setup’».

‘Services’ refers to the services offered by FFBV with respect to the Software, as set forth in Article 3 hereof. Details of the Services provided by FFBV to the Customer are described in the Special Terms and Conditions.

Website’ refers to the website hosted at the following address: mrsuricate.com.

2.   Agreement to the General Terms and Conditions

The General Terms and Conditions determine the contractual conditions applicable to the business relationship between FFBV and the Customer.

The Customer is required to read the General Terms and Conditions carefully before using the Services offered by FFBV. The General Terms and Conditions contain important information on the rights and obligations of the Customer, as well as on the liability limitations and exclusions of FFBV.

By using the Services, the Customer confirms his full and unreserved acceptance of the General Terms and Conditions, which is expressly acknowledged by the Customer, who waives, without limitation, the right to rely on any other document which would be unenforceable against FFBV. If the Customer does not accept the General Terms and Conditions, the Customer is requested not to use the Services offered by FFBV.

Previous versions of the General Terms and Conditions of Services are available by simple request at suricate@mrsuricate.com.

3 Definition of the Services

FFBV offers the following Services, via the ‘Production’ and/or ‘Testing Environment’ offer, available as monthly subscriptions:

(i) The provision of the Software by means of a limited user license granted to the Customer;

(ii) The Customer’s personalized distance training in the use of the Results and KPIs part of the Software;

(iii) The performance of an Audit by FFBV;

(iv) The production of a Test Suite by FFBV;

(v) The creation by the FFBV of specific scenarios for the Internet, Extranet and Mobile sites;

(vi) Automated and/or manual email alerts on identified malfunctions;

(vii) Issuing reports on the results of the tests performed by the FFBV;

(viii) ‘Maintenance’;

(ix) A dedicated account manager

The Services provided to the Customer by FFBV are specified in Article 14 via offers.

4         Test Suite and test Case

The Customer is responsible for identifying and defining his/her needs precisely before resorting to the Services offered by FFBV.

FFBV is responsible for asking all the questions necessary to determine the Customer’s needs and the proper performance of the Services, and to determine the suitability of the Software and the Scenarios with the needs expressed by the Customer.

Test cases, including the information necessary for FFBV to perform the Services, will be established in advance by FFBV in collaboration with the Customer.

A Test Suite, including all the detailed information necessary for FFBV to carry out the Services, will be drawn up beforehand, depending on the case, by the Customer, by FFBV or in collaboration between the Customer and FFBV, based on the Test cases.

If the customer has only validated test cases, these will be valid for the duration of the contract.

 The Scenarios are created by FFBV in consideration of the information contained in the Test Suite, which is limited to the number of scenarios provided for in these special terms and conditions.

5         Services Order

5.1         Ordering process

The Customer who wishes to subscribe to the Services offered by FFBV must first send a request via the contact form accessible on the Website or by e-mail to suricate@mrsuricate.com.

FFBV will respond to the Customer’s request as soon as possible in order to determine, together with the Customer, the Services (Offers and number of scenarios) corresponding to its needs. The Customer must carefully check, before using the Services, that they correspond to his/her needs. The Customer may rely, as part of the performance of the Agreement, on the advice of FFBV for the deployment and configuration of the Software, in particular, which FFBV understands and accepts.

FFBV shall not be liable for any failure by the Customer to determine his/her needs or for any error by the Customer in the ordering process.

The conclusion of the Agreement will take place when the Customer accepts and signs the quotation (special conditions), drawn up by FFBV at the Customer’s request.

The order is considered final only after validation by Mr Suricate of the quotation (‘Special Conditions’). The Parties have mutually agreed on a possible evolution during the execution of the Services. The latter, if they remain at a constant perimeter (constant number of simultaneous scenarios) and if the modifications of the itinerary are minor, will not result in additional invoicing. In the event that the agreed scope of a Customer’s request is exceeded, FFBV will alert the Customer and will send them an estimate that the Customer may accept or refuse.

The Customer may request a quotation, additional scenarios or a redesign of existing scenarios by email to his dedicated account manager. This request will be submitted to the Customer in the form of a new quotation, which the Customer may accept or refuse without affecting the initial contract.

5.2         Order processing and creation of a Customer Back-Office

Once FFBV has received the ‘Special Conditions’ signed by the Customer, the Customer will receive an e-mail at the beginning of the ‘Setup’ confirming the registration of his/her order. This e-mail includes the login and password allowing the Customer to access his/her Customer Back-Office on the Website. The Customer Back-Office is strictly reserved for the use of the Customer on behalf of whom it was created.

The Customer is solely responsible for the content of the information provided when signing the Agreement as well as the confidentiality of his/her user name and password provided to him/her to access his/her Customer Back-Office.

Unless proven otherwise, the data recorded in the FFBV’s computer system are the proof of all transactions concluded with the Customer.

FFBV offers the creation of one or more personalized Scenarios. They will be created progressively from the effective date of the Agreement and after validation of the test suite by the Customer.

Financial conditions

5.3         Price of the Services

The Services are offered at the applicable prices on the day the Agreement is concluded between FFBV and the Customer as specified in the Special Terms and Conditions.

The prices are in euros, excluding taxes and VAT. Any change in the VAT rate will be reflected in the price of the Services.

FFBV shall have the option of revising the price of the Services within a period of one month prior to the Contract’s anniversary date. In such event, FFBV will inform the Customer by email. If the Customer does not accept the price change, the Customer will be held to have refused the price change. In this case, the Parties may meet to negotiate a potential price increase or may terminate the Agreement as provided herein. Should the Contract not be terminated, the previous prices in force shall continue to apply.

5.4         Terms of payment

Subject to the stipulations included in the Special Terms and Conditions, the price of the Services shall be paid in cash and in advance at the beginning of each contractual period, via a bank transfer or direct debit.

 

 

 

5.5         Payment Default – Late Payment Penalties

Should the Customer fail to pay on time any amount due to FFBV, and in application of the twelfth paragraph of Article L441-6, I of the French Commercial Code, the amount of the late payment penalties is three times the legal interest rate in force on the day of the Customer’s default.

Should the Customer fail to pay, in whole or in part, any amount due on time, FFBV may, at its discretion, suspend with immediate effect the performance of the Services until full payment has been made, without prejudice to any claim for damages and/or the application of the termination clause provided for in Article 8.2 (i).

5.6         Flat-rate compensation for recovery costs

Pursuant to Article D 441-5 of the French Commercial Code, the amount of the flat-rate indemnity for collection costs is set at 40 euros.

This indemnity, which is independent of the late payment penalties, is due by rights by the defaulting Customer, without prejudice to the right of FFBV to request additional compensation in the event that FFBV justifies collection costs exceeding this amount.

5.7         Cancellation or refusal of an order by FFBV

FFBV reserves the right to refuse or cancel a Customer’s order for any legitimate reason, in particular in the event of incorrect entry of payment data or rejection of the payment method used.

The Customer will have to cover all possible costs needed to solve the problem, in particular if his/her bank refuses to accept the payment.

6         Terms of use

6.1         Customer’s Obligations

The Customer shall refrain from any use of the Software and the Customer Back-Office other than that expressly provided for in the Agreement.

The Customer undertakes to use the Software in accordance with these Terms and Conditions, in particular with regard to FFBV’s intellectual property rights, with the express recommendations of FFBV or its partners and in a non-abusive or fraudulent manner.

The Customer commits to regularly back up his data, in order to minimize the consequences of a potential accidental destruction.

6.2         Obligations of FFBV

FFBV guarantees the security of its servers, in particular by the installation of anti-malware and firewall software.

FFBV creates, maintains and executes the scenarios with a recurrence stipulated in the ‘Special Conditions’.

The anomalies detected during the executions are manually analyzed by the acceptance managers who qualify them and confirm their reproducibility before transmitting the results to the Customer.

FFBV cannot be held responsible for undetected anomalies that occur outside the recurrence range of the scenarios.

6.3         Internet Terms of Use

FFBV strives to allow access to the website and the software 24 hours a day, 7 days a week, except in cases of force majeure or an event beyond the control of FFBV, and subject to any breakdowns and maintenance work necessary for their proper functioning and the associated services. Consequently, FFBV cannot guarantee the availability of the website and the software, the reliability of transmissions and performance in terms of response time or quality. greater than what has been agreed between the Parties.

The Customer declares to accept the characteristics and limitations of the Internet, and acknowledges in particular that:

(i) FFBV does not assume any responsibility for the services accessible via the Internet and does not exercise any control whatsoever over the nature and characteristics of the data that may be transmitted through its server center;

(ii) The data circulating on the internet are not protected against possible misappropriation. The presence of the FFBV logo establishes a simple presumption of validity. The communication of any information deemed by the Customer to be of a sensitive or confidential nature is made at the Customer’s own risk;

(iii) The data circulating on the Internet are not protected during their circulation, especially against potential misappropriations. The presence of the FFBV logo establishes a simple presumption of validity. The communication of any information deemed by the Customer to be of a sensitive or confidential nature is done at their own risk;

(iv) The Customer is solely responsible for the use of the data he/she consults, queries and transfers on the Internet;

FFBV has no means of control over the content of the services accessible on the Internet;

FFBV will endeavor to limit the duration of interruptions to access the Website and the Software and to schedule them, as far as possible, outside of working hours.

In case of scheduled maintenance, FFBV undertakes, if possible, to notify the Customer of the maintenance at least 1 week in advance. 

 

FFBV cannot be held liable for the above, except for demonstration of serious non-performance on its part.

FFBV is not responsible for the malfunction of the software when this malfunction is due to improper use by the Customer. The Customer may be prohibited from access to the Software or the Customer Back-Office, temporarily or permanently, in the event of non-compliance with the present terms of use provided for in Article 6 and, more generally, with these General Conditions.

 

6.4         Technical support

A technical support, allowing the Customer to contact FFBV in order to report anomalies affecting the Software or the Services or for any question related to their use, is available by contacting FFBV at the following address: support@mrsuricate.com

FFBV will provide the Customer with a physical person who will be their dedicated contact

This contact person will be available every working day during the hours 9-12/14-17h. FFBV is committed to ensuring that the response time does not exceed 4 hours on the time slots indicated.

In the event of the absence of the dedicated contact person, FFBV shall notify the Customer of his unavailability and ensure that they are replaced by a contact person of identical qualification.

7        Duration of the Agreement – Early Termination

7.1         Duration of the Agreement

The initial duration of the Agreement concluded between FFBV and the Customer is specified in the Special Conditions.

Subject to the provisions of the Special Terms and Conditions, the Agreement shall, at the end of the initial term, be tacitly renewed for periods of the same duration as the initial term, unless either Party gives written notice of termination to the other Party at least one (1) month prior to the end of the current contractual period.

7.2         Early termination

Either party may terminate the Agreement early at any time by written notice in the following cases:

(i) Failure by the other party to comply with its obligations, subject to prior formal notice to rectify the said failure which has remained without effect for a period of one (1) month

(ii)The occurrence of a force majeure event, as defined by French law and the French courts, making the execution of the Agreement permanently impossible or whose effects last more than 30 (thirty) calendar days;

Receivership or liquidation by the court of the other party.

7.3         Consequences of termination

Termination of this Agreement for any reason will not affect:

(i) any accumulated rights, liabilities or remedies of the parties, including payments due on the effective date of termination; or
(ii) Upon the effectiveness or continuance of any provision of this Agreement expressly or impliedly intended to come into or remain in effect upon termination.
Any subscription to the Services subscribed by the Customer and the license to use the Software granted to the Customer by FFBV will terminate immediately upon the effective termination date of the Agreement.
Upon the effective termination date of the Agreement, each Party engages to immediately cease all use of the name, trademark, logo or other intellectual property of the other Party.
No compensation shall be due by a Party to the other Party in the event of termination of the Agreement.

8         License to use the Software

In return for the payment of the price of the Services by the Customer as set forth in Article 6 hereof and subject to the Customer’s compliance with all of his/her obligations under the Agreement, FFBV grants the Customer a personal, non-exclusive, non-assignable and non-transferable right to use the Services and the Software for the sole duration of the Agreement.

This license does not grant the Customer any intellectual property rights in the Software or the Scenarios, which remain the sole and exclusive property of FFBV. The Customer undertakes to respect the proprietary notices appearing on the Software, the media or the documentation of FFBV.

FFBV warrants that it is the owner of the intellectual property rights enabling it to enter into this license and that this license is not likely to infringe the rights of third parties.

The Customer may not under any circumstances make the Services or the Software available to a third party and may not assign all or part of the rights and obligations hereunder, whether by way of temporary assignment, sub-license or any other Agreement providing for the transfer of the said rights and obligations. 

The Customer uses the Software and the results obtained by its use under his/her sole responsibility.

FFBV shall not be liable for any actions taken by the Client after obtaining the results.

9        Intellectual property

9.1         Intellectual property rights of FFBV

The ownership and intellectual property rights attached to each Party’s name, trademark, logo or any other intellectual property of each Party shall remain the exclusive property of that Party.

More specifically, the general structure of the Website, as well as the texts, questionnaires, graphics, images, sounds and videos composing it and those composing the Software and the Scenarios, are the exclusive property of FFBV or its partners. Any representation, reproduction and/or partial or total use of the content and services offered by the Website, the Software and the Scenarios, by any process whatsoever, without the prior written consent of FFBV and/or its partners is strictly prohibited and may constitute an infringement under the Intellectual Property Code.

The data, website structures, sales paths and content to which FFBV shall have access for the performance of the Services shall remain the exclusive property of the Customer. FFBV shall not reproduce, imitate or transmit any element to which it has access to third parties.

9.2         Right of use and reproduction

However, the Customer expressly authorizes FFBV, during the duration of the Agreement and for the purposes strictly necessary for the performance of the Services, to use and reproduce the intellectual property belonging to him/her.

9.3         Ownership of Deliverables

FFBV remains the sole owner of the property right and of all intellectual property rights related to all documents, notes, reports, works and more generally any element of any nature whatsoever, made, created or carried out by FFBV on behalf of the Customer in the context of the execution of its Services (the ‘Deliverables’) and this, regardless of the media, the form or the writing method.

In return for payment of the price for the Services, FFBV grants the Customer a personal, non-exclusive and non-transferable right to use the Deliverables for the duration of the Agreement.

9.4         Privacy policy

In this article, the term ‘Confidential Information’ covers all information and data of any nature (financial, technical, organizational, commercial…), whatever the form, transmitted to the other Party or brought to the knowledge of the other Party, in writing or orally or by any other means, by/about it.

Each Party shall transmit to the other Party, to the extent it is authorized to do so, only such Confidential Information as it deems relevant to the subject matter hereof.

The Parties guarantee that the transmission of Confidential Information by and between them does not contravene the laws and regulations of their respective countries.

Each Party undertakes for a period of three (3) years from the end of their contractual relationship that the Confidential Information:

(a) be protected and kept strictly confidential and in particular be treated with the same degree of care and protection as the other Party accords to its own Confidential Information of equal importance, and at least with a reasonable degree of care and

protection; and

(b) be disclosed in-house only to those of its employees or officers who need to know, and be used by them only for the purposes set forth in the preamble to this Agreement; and

(c) not be used, in whole or in part, for any purpose other than that defined herein, without the prior written consent of the other Party; and

(d) not be disclosed or likely to be disclosed, either directly or indirectly, to any third party or persons other than those referred to in paragraph (b) above, with the exception of its external consultants who are subject to a professional duty of confidentiality and its auditors; and

 

 

 

 

 

 

 

 

  • (e)not be copied, reproduced or duplicated in whole or in part where such copying, reproduction or duplication has not been specifically authorized by the other Party in writing.
  1. 3. All Confidential Information and its reproductions shall remain the property of each Party and shall be returned to it immediately upon request and in any event at the end of their contractual relationship.

This provision shall not apply where a Party is required to retain any such Confidential Information by applicable law or regulation, or by any competent judicial, administrative, or regulatory authority.

  1. Each Party recognizes that its confidentiality obligations are essential and that failure to comply with them would cause harm to the other Party.

Each Party reserves the right to claim compensation for any damages from the other Party in the event of the latter’s breach of its obligations.

  1. Without prejudice to the above, each Party shall have no obligation and shall not be subject to any restriction with respect to any Confidential Information that it can prove:

(a) that they entered the public domain prior to their disclosure or after it, but in this case in the absence of any fault attributable to them; or

(b) that they were already known to them, which can be demonstrated by the existence of appropriate documents in their files; or

(c) that they were lawfully received from a third party without restriction or violation of this Agreement; or

(d) they are the result of internal work carried out in good faith by members of its staff who did not have access to the Confidential Information; or

(e) they have been published without violating the provisions of this Agreement; or

(f) that they have been used or disclosed only after written authorization from the other Party; or

(g) that the law, applicable regulations or a court order has required them to disclose. In such a case and to the extent permitted by law, the disclosing Party shall immediately notify the other Party in writing, specifying the circumstances of such disclosure.

10        Guarantees

FFBV guarantees that the Software is developed in accordance with the rules of the art and capable of allowing the accomplishment of the Services agreed with the Customer.

FFBV notably guarantees that the Software is subject to regular security updates and continuous protection against malicious software in accordance with the rules of the art.

FFBV guarantees the peaceful use of the Software.

In this context, FFBV declares that it has acquired all rights and authorizations relating to the Software and guarantees the Customer peaceful enjoyment of the rights granted to it against any disturbance, claims or evictions whatsoever.

FFBV undertakes to fully compensate the Customer in the event of a claim by an injured third party. This compensation will cover all sums charged to the Customer for damages and interest, but also all related procedural costs, professional fees (lawyers, experts, etc.).

 11       Liability – Insurance

11.1         Liability

FFBV commits to perform the Services in accordance with the commitments made under the Agreement and in accordance with applicable laws and regulations.

 

 

 

 

 

2FFBV is only bound to the Customer by an obligation of means with respect to the performance of the Services.

FFBV shall be liable for the proper performance of its obligations under the Agreement in particular in the event of any failure, defect or negligence in the performance of the Services which has resulted in direct harm to the Customer, excluding any indirect harm of any nature whatsoever, including but not limited to damage to the Customer’s property, loss of profits, business disruption, claims or demands of third parties.

The liability of FFBV shall be excluded or reduced if the improper performance of the Services is the result of a breach by the Customer under this Agreement, including, in particular, its obligation to provide FFBV in due time with actual and complete information necessary for the proper performance of the Services, including, when required by the Customer, the Test Suite.

FFBV understands and accepts that it has an obligation to advise the Customer in its capacity as a computer professional and expert in the operation of its software, and that the limitation provided for in this paragraph shall apply only if it demonstrates that it has fully performed this obligation.

This Agreement shall apply to the subcontractors of FFBV, which shall be responsible for the selection and supervision of such subcontractors and shall be responsible for their compliance with the provisions of this Agreement.

11.2         Insurance

FFBV declares that it is insured for its professional civil liability with a company known to be solvent for all material and immaterial damages resulting from the performance by FFBV of its obligations under the Agreement.

12         Referencing

The Customer expressly authorizes FFBV to display information relating to his/her identification as well as his/her logo and/or trademark on the Website and on the FFBV’s commercial brochure, without the Customer being able to claim any rights or remuneration as a result.

13         General provisions

13.1         Partial invalidity

The nullity of a contractual clause does not entail the nullity of the General Terms and Conditions, with the exception of the nullity of an impulsive and determining clause that led one of the parties to contract.

13.2         Applicable law – Mediation – Jurisdiction

The General Terms and Conditions and more generally the Agreement are subject to French law.

For any dispute related to the conclusion or performance of the Agreement, the Customer must, prior to any other step, contact FFBV in order to seek an amicable solution. The Customer may send a written complaint by e-mail to suricate@mrsuricate.com or by post to the address given in the Preamble hereof.

Without prejudice to the foregoing, any dispute that may arise in connection with the formation, performance or interpretation of this Agreement shall be submitted to the Commercial Court of NANTES.

The recurrence parameterized for the scenarios resulting from this offer is every hour at most.

This offer can only be subscribed once per customer.