Terms and Conditions
Last updated: January 13, 2021
Article 1 – Identification
The KIFLO company, SAS with a capital of 1,000 euros registered in the Trade and Company Register of Créteil under the number 847 670 262, whose head office is located at 7 Impasse Denis Dulac – 94700 Maisons-Alfort, (hereinafter “KIFLO” or the “Publisher”), specialized in the software publishing.
KIFLO publishes and offers in particular, via the Website www.kiflo.com (hereinafter referred to as the “WEBSITE”), a collaborative work platform between a company and its partners in charge of achieving sales for the company. This platform is SaaS-based (Software As A Service) and is called “KIFLO” (hereinafter referred to as the “SOLUTION”).
The SOLUTION allows users to access a collaborative work platform via the Internet and thus to centralize and share documents, information, files, tasks and other types of information via a single interface. The SOLUTION includes various features such as customizable dashboards, the possibility for the company making the platform available to its partners to track the sales of its partners, train its partners in sales, share leads, ...
All features are indicated and described on the WEBSITE.
The WEBSITE and the SOLUTION are published by KIFLO, which is the owner.
The Managing Editor of the WEBSITE is Mr. Steven MUHR, President of KIFLO.
Article 2 – Definitions
Capitalized terms are defined as indicated below:
Administrator: employee of the Client who manages the provision of the Solution to the Partners and interfaces with KIFLO if necessary, in particular during maintenance operations.
Client: refers to the natural person or legal entity having placed an order on the website www.kiflo.com to be able to use the SaaS solution. The Client is a professional and guarantees it placed an order as part of its business activities. The term Client includes all users to whom access to the Solution has been authorized by the Client for the items that define the rules for access to and use of the SOLUTION, the Client being responsible for all users to whom it offers access to the Solution.
Content: refers to all documents, images, videos, information or data, and in general any digital content of the CLIENT processed, hosted or transmitted to third parties via the SOLUTION.
Partner: refers to the partners of the CLIENT for whom the CLIENT creates a space on the SOLUTION.
Personal Data: refers to all data allowing the direct or indirect identification of a natural person.
Solution: refers to the Saas-based KIFLO tool available online and made available to the Client and the Users by KIFLO.
User: refers to any person having access to the Solution. Each User undertakes to comply with the Terms and Conditions of Use when opening his/her account. The Client undertakes to ensure all Users comply with the Terms and Conditions of Use of the SOLUTION.
User Space: refers to the space from which the User can set up the SOLUTION made available to him/her.
Website: refers to the website www.kiflo.com from which it is possible to access the SaaS-based KIFLO solution.
Article 3 – Purpose
The purpose of these Terms and Conditions is to define the terms and conditions for the conclusion, via the WEBSITE by a CLIENT, of a subscription to enable the use of the SOLUTION (hereinafter the “SUBSCRIPTION”). The conditions for the SUBSCRIPTION depend on the package selected by the CLIENT.
Therefore, these Terms and Conditions define the terms and conditions under which, as part of the SUBSCRIPTION, KIFLO:
- Grants the CLIENT the personal, non-assignable, non-transferable, and non-exclusive right to use the SOLUTION according to its intended purposes and for the CLIENT own needs
- Provides hosting of the CLIENT's data as part of the use of the SOLUTION, and the maintenance of the SOLUTION
Article 4 – Acceptance of the Terms and Conditions
The CLIENT declares that it is legally capable of entering into this Agreement, the Terms and Conditions of which are set forth below, i.e. that it is of legal age, is not under tutorship or curatorship, and has the necessary powers when acting in the name and on behalf of a legal entity.
The CLIENT undertakes to ensure that any USER it invited to use the SOLUTION complies with the Terms and Conditions.
These Terms and Conditions are written in French in their original version, which alone is authentic and prevails over any other version.
They apply to the exclusion of all other conditions. All conditions emanating from the CLIENT, provided that they are not in contradiction with these Terms and Conditions, will be valid only if they have been accepted by KIFLO, in a preliminary and express manner.
These Terms and Conditions are systematically accessible by the CLIENT on the WEBSITE before any order and at the time of registration of the order of a subscription to the SOLUTION.
The CLIENT declares having read and accepted the following provisions before placing an order for a subscription to the SOLUTION by clicking on the button “Create my account” and under which appears the following statement “By clicking on the button Create my account, you acknowledge having read and accepted without reservation the Terms and Conditions of KIFLO”.
Consequently, the fact of placing an order and/or using the SOLUTION implies the full and unreserved compliance of the CLIENT with these Terms and Conditions.
The applicable Terms and Conditions are those available online on the WEBSITE on the day of the order.
The fact of not exercising, at any time, a right recognized by these Terms and Conditions, or the fact of not requiring the performance of any provision of the said conditions, may in no way be interpreted either as a modification of the Terms and Conditions, or as an express or tacit renunciation of the right to exercise the said right in the future, or of the right to require the scrupulous performance of the commitments subscribed to these Terms and Conditions.
Article 5 – Services
The SaaS-based services available on the SOLUTION are mainly:
- Invite Users, in particular Partners, to benefit from a common space for sharing documents and information.
- Share a common data base of contacts and leads, and indicate what each User did regarding said contacts.
- Follow up of commercial relationships and ongoing negotiations.
- Share new marketing campaigns.
- Train your Partners to your new tools or new products.
- Share documents (texts, videos, photos,...) with Users selected by the CLIENT.
The features depend on the package selected by the CLIENT. The packages are defined on the WEBSITE. When the Service offered to the Client is not defined within a package, in particular when developments are specifically made for the Client, a specific quote will be established. The Client will be notified of the amount of this quote before validation of the order on the website.
Article 6 - Client Space
The first subscription of the Client is made the first time it logs to its account. Then, the Client can modify its subscription from its client Space.
The creation of its Space by the CLIENT can be done by clicking on the “Create my account” button on the WEBSITE or by Kiflo upon request of the CLIENT.
Once the account has been created, a confirmation e-mail summarizing the information filled in is sent to the CLIENT at the email address that it previously indicated.
Through its client Space, the CLIENT accesses its dashboard and can setup the rights it grants to the Users to whom it gives access to the SOLUTION.
Article 7 – Online subscription of the SUBSCRIPTION
The CLIENT acknowledges that the SOLUTION is an online service, identical for every CLIENT according to the selected package. It is therefore the responsibility of the CLIENT to check that the features specified meet its needs before placing its order, or to contact KIFLO for more information.
The CLIENT places its order for a SUBSCRIPTION from its client Space in the SOLUTION or during its first connection to its account or it places an order directly with KIFLO.
Any online order constitutes acceptance by the CLIENT of the prices and descriptions of the SOLUTION and the SUBSCRIPTION packages. The various features contained in the packages, as well as their prices, are specified and described on the WEBSITE, except in the case of an order requiring specific development for the Client.
Once its order has been completed, a summary screen gives the CLIENT the opportunity to check the chosen SUBSCRIPTION and the total price of its order. The CLIENT may, if necessary, modify this order before confirming it.
The order confirmation is equivalent to the handwritten signature referred to in Article 1341 of the French Civil Code and to the conclusion of a contract in electronic form within the meaning of Articles 1369-1 et seq. of the French Civil Code. By this action, the CLIENT confirms its order and declares that it accepts it, as well as the entirety of these Terms and Conditions, fully and without reservation.
The order becomes then irrevocable and can only be challenged in the cases restrictively provided for herein.
As soon as its order is registered, an acknowledgement of receipt and confirmation of the order is automatically sent to the CLIENT at the email address it has indicated.
KIFLO reserves the right to refuse the validation of the order of a CLIENT with whom there is an ongoing dispute relating to the payment of a previous order and/or which does not conform to these Terms and Conditions.
This email details the order of the CLIENT, specifies the exact amount and refers to these Terms and Conditions.
The Client has a trial period of seven (7) days during which it can cancel the order at any time. The Client will not be debited before the end of this trial period.
Once this trial period has elapsed, no cancellation, total or partial, of the order will be accepted, except with the prior agreement of KIFLO.
Article 8 – Price/ Unforeseeable Circumstances
The WEBSITE offers different packages for the use of the SOLUTION.
The packages are described on the WEBSITE and specify, for each one of them, the features they include and their price.
The prices mentioned on the WEBSITE are indicated in US Dollars excluding taxes and including taxes.
The prices applicable to the order are the one in force the day of the order.
Promotional offers are valid only within the limit of the validity period of the offer concerned.
If the SUBSCRIPTION is renewed, KIFLO may unilaterally revise the price of the SUBSCRIPTION. In this respect, KIFLO must notify the CLIENT of the new revised price, by any means, no later than 60 days before the expiry date of the SUBSCRIPTION, thus giving the CLIENT the possibility of withdrawing from the SUBSCRIPTION if necessary.
8.2 Unforeseeable economic circumstances
In accordance with Article 1195 of the French Civil Code, KIFLO declares that it does not accept the risk of upward fluctuations in the cost of hosting and storage of the SOLUTION and the CLIENT's Contents which are invoiced to it by the hosting service provider which subcontracts these specific services. Consequently, any upward fluctuation of more than FIFTEEN (15) % of this specific service notified to the CLIENT is deemed to constitute an unforeseeable economic circumstance making the provision of the SaaS-based service excessively expensive for KIFLO. In such circumstances, the parties undertake to renegotiate the Contract in good faith. In the absence of a written agreement by way of amendment within thirty (30) days of the notice referred to above, either party may give notice of termination of the Contract, without compensation of any kind to either party. Prior to the agreement on the new price or termination of the Contract under the foregoing conditions, KIFLO shall be bound to perform the Contract, applying the financial terms and conditions and in accordance with the terms and conditions agreed with the CLIENT.
Article 9 – Payment of the SUBSCRIPTION
9.1 Terms of payment
The SUBSCRIPTION is payable annually or monthly, in the form of fees for the amounts defined at the time of the order. Payment is due in advance.
Invoices are payable net, without discount, at the time of the order and then on the date of each tacit renewal.
The CLIENT shall pay for the SUBSCRIPTION by credit card by providing its bank details when ordering the SUBSCRIPTION.
The CLIENT uses the Stripe's payment solution. The payment is secured. KIFLO does not have access to the CLIENT's banking data under any circumstances. At the moment of each tacit renewal, the amount of the Subscription will be debited from the bank account corresponding to the bank card used at the time of the first payment of the SUBSCRIPTION. The direct debit of the fee automatically generates an invoice, which is sent to the CLIENT by email to the email address indicated. The invoices can also be viewed in the SOLUTION from the Client's account.
Subject to having previously contacted KIFLO to obtain its agreement on this method of payment, the CLIENT may also proceed to payment by bank transfer.
9.2 Deadline for payment
Invoices are payable on the day they are issued.
Any sum not paid on the due date shall automatically and without formalities, in accordance with Article L.441-6 of the French Commercial Code, (i) result in the application to the remaining amounts due and until they are fully paid, of a late payment interest rate equal to the ECB rate on refinancing operations plus 10 percentage points. In this case, the applicable rate during the first half of the year concerned shall be the rate in force on January 1st of the year in question, and for the second half of the year, the rate in force on July 1st of the year in question; (ii) payment of the amount of a lump-sum indemnity for recovery costs as fixed by the regulations in force, i.e. €40 if the recovery costs are less than this sum, and, in excess of this sum, an amount equal to the sums actually incurred in order to obtain payment of the debt due.
In addition, in the event that a sum due is not paid within fifteen (15) days of the formal notice sent by registered letter with acknowledgement of receipt, KIFLO will be entitled to suspend the performance of its obligations until payment of this sum and/or terminate as of right the SUBSCRIPTION, without prejudice to the damages to which it may be entitled.
Article 10 – Duration of the SUBSCRIPTION
The SUBSCRIPTION, and the rights and obligations arising therefrom, is concluded for a duration of one (1) month or one (1) year, tacitly renewable by successive periods of a duration equivalent to the initial duration of the Contract, unless terminated by one of the Parties, by sending, no later than thirty (30) days before the end of the current period, to the other Party a notification by mail or email.
At the end of the SUBSCRIPTION, the CLIENT will no longer have access to the SOLUTION and, consequently, will cease all use of the SOLUTION.
Article 11 – Scope of the right granted on the SOLUTION
As part of the SUBSCRIPTION, KIFLO grants the CLIENT a personal, non-transferable and non-exclusive right of use and remote access to the SOLUTION.
The CLIENT may only use the SOLUTION in accordance with its needs and documentation, and solely for its own needs.
The number of Users is limited, and the price changes according to the number of Users authorized to use the SOLUTION. Likewise, the storage space is limited and may be increased if necessary. The different rates are specified on the Website. The Client undertakes to respect the number of Users authorized by its subscription and the allocated storage space.
The right to use thus granted includes the right to represent and implement the SOLUTION in accordance with its purpose, SaaS-based via an Internet connection.
The right to use granted may not be sub-licensed, assigned, transferred or distributed in any way, whether free of charge or for a fee. The CLIENT strictly refrains from, without this list being exhaustive:
- Copying or reproducing, broadcasting, adapting the SOLUTION in whole or in part, by any means or in any form.
- Using the SOLUTION in any way other than in accordance with the strictly interpreted provisions of these Terms and Conditions.
- Translating or transcribing the SOLUTION in any other language, or adding to it any object that does not conform to its specification.
- Translating or transcribing the SOLUTION in any other language, or adding to it any object that does not conform to its specification.
The SUBSCRIPTION does not grant the CLIENT any intellectual property rights on the SOLUTION, said rights remaining the full and exclusive property of KIFLO. Thus, the CLIENT undertakes to comply with the property references appearing on the SOLUTION, the media and the related documentation.
The CLIENT acknowledges that the copyrights and other intellectual property rights to the SOLUTION, including all modifications made by or for the CLIENT, whether authorized or not, are and remain the property of KIFLO.
KIFLO does not provide the source programs of the SOLUTION.
In the event of a breach by the CLIENT of its obligations described above, the SUBSCRIPTION may immediately be terminated by KIFLO by right by sending a registered letter with acknowledgement of receipt under the conditions and with the consequences set out in the “Termination” Article found below.
The Client selects the Users that it authorizes to use the Solution, including its Partners. The Client shall ensure that the Users it authorizes comply with the terms and conditions of use.
Article 12 – Access to the SOLUTION
12.1 Preliminary information
Access to the SOLUTION requires Users to have access to the Internet. All the costs necessary for the equipment and the Internet connection are under the complete responsibility of the User.
The CLIENT declares that it is aware of the characteristics and limitations of the Internet described below:
- That data transmissions over the Internet only benefit from a relative technical reliability and that no one can guarantee the proper functioning of the Internet.
- That KIFLO has taken important measures to secure the access to the SOLUTION, but that the data circulating on the Internet may be subject to misappropriation, and that the communication of passwords, confidential codes, and more generally, any information of a sensitive nature is carried out by the CLIENT at its own risk.
- That the Internet is an open network and that the information transmitted by this means is not protected against the risks of misappropriation, fraudulent, malicious or unauthorized intrusion into the CLIENT's information system, hacking, alteration or unauthorized extraction of data, modification, malicious alteration of programs or files or contamination by computer viruses. That it is therefore the responsibility of the CLIENT to take all appropriate measures to protect its own data and/or software stored on its information system from contamination by viruses as well as from intrusion attempts by third parties via the access service.
As a consequence of the foregoing, and in full knowledge of the characteristics of the Internet, the CLIENT undertakes not to trigger the liability of KIFLO in respect of one or more of the facts or events mentioned above, unless KIFLO is at fault.
In order to be able to benefit from the services, the access to the SOLUTION must be done via an up-to-date browser. KIFLO in no way guarantees that the SOLUTION will be running all browsers.
The CLIENT acknowledges having been sufficiently informed as to the computer conditions required to access the SOLUTION.
12.2 Availability of the SOLUTION
The SUBSCRIPTION is intended to grant the CLIENT the right to access the SOLUTION via the Internet network.
KIFLO undertakes to make its best efforts to ensure that the SOLUTION is accessible to the CLIENT 24 hours a day, 7 days a week, via a connection to an Internet network, and using a username and password specific to the CLIENT.
As such, the CLIENT is warned regarding the technical hazards inherent to the Internet and the interruptions of access that may result. Consequently, KIFLO cannot be held responsible for any unavailability or slowdown of the SOLUTION.
In addition, KIFLO reserves the right to restrict access to the SOLUTION without prior notice, either totally or partially, particularly in order to ensure the maintenance and/or development of the SOLUTION. KIFLO will attempt not to make access to the SOLUTION unavailable for an excessive period of time.
Likewise, if the SOLUTION is inaccessible due to technical malfunctions which are the responsibility of KIFLO, it undertakes to make its best efforts to remedy the malfunctions as quickly as possible and to make the necessary corrections, and in any event does not guarantee that access to the SOLUTION will be uninterrupted.
KIFLO is generally only bound by an obligation of means regarding the CLIENT's access to the SOLUTION.
12.3 How to access the SOLUTION
When the SUBSCRIPTION is concluded, the CLIENT enters a username and a start-up password. The Client may subsequently change the password at any time.
The username and password are intended to reserve access to the SOLUTION to the CLIENT, to protect the integrity and availability of the SOLUTION, and to preserve the confidentiality of the CLIENT's data hosted through the SOLUTION by KIFLO.
The CLIENT is entirely and exclusively responsible for its username and password, which are personal and confidential to it. The CLIENT alone will bear the consequences which could result from their use by third parties who would have had knowledge of them. In the event of failure on the part of the CLIENT and/or infringement of any rights whatsoever of KIFLO, KIFLO may terminate the SUBSCRIPTION under the conditions defined in the “Termination” Article found below, without prejudice to the damages to which it may be entitled.
Via its account, the CLIENT may then invite and select the Users of its choice. To this end, the selected Users will also have a password and a username allowing them to access the SOLUTION via a User Space.
The CLIENT undertakes and guarantees KIFLO that the Users to whom it has authorized access to the SOLUTION will comply with the Terms and Conditions of Use. Likewise, the usernames and passwords assigned to Users are personal and confidential to them. The CLIENT undertakes and guarantees that the Users will respect the strict confidentiality of these elements. Under these conditions, in the event of failure to respect this confidentiality by Users or misuse of the SOLUTION by the Users, the CLIENT alone will bear the consequences that may result. Similarly, KIFLO may terminate the SUBSCRIPTION under the conditions defined in the “Termination” Article found below, without prejudice to any damages to which it may be entitled.
As soon as the CLIENT is informed that a third party has accessed its Space or the Space of a User to which it has authorized the access, the CLIENT undertakes to notify KIFLO of this without delay.
Article 13 – Hosting of the CLIENT's data
As part of the use of the SOLUTION by the CLIENT, KIFLO will provide Hosting of the CLIENT's data.
The Hosting service refers to the allocation by KIFLO to the CLIENT, as part of the SUBSCRIPTION subscribed to, of a storage space in which the CLIENT can store its data as part of the use of the SOLUTION. This storage space is limited.
KIFLO undertakes to proceed with the Hosting of the data entrusted by the CLIENT so that they are accessible and that the CLIENT can share this data with the Users that the CLIENT will have chosen, in particular with its Partners.
From the time they are put online, KIFLO undertakes to make its best efforts to ensure that the CLIENT can access the data thus stored 24 hours a day, 7 days a week, via an Internet network connection, and using the CLIENT's access codes.
As such, the CLIENT is warned of the technical hazards inherent in the Internet, and interruptions of access that may result. Consequently, KIFLO cannot be held responsible for any moments the CLIENT is unable to access its data.
In addition, KIFLO reserves the right to restrict without prior notice, either totally or partially, access to the SOLUTION, and thus to the data, in order to ensure, in particular, the maintenance and/or development of the SOLUTION as well as the software, hardware or infrastructure used for the Hosting of the Client's data. KIFLO will attempt not to make access to the data unavailable for an excessive period of time.
Similarly, if the data of the CLIENT is inaccessible due to technical malfunctions which are the responsibility of KIFLO, it undertakes to make its best efforts to remedy the malfunctions as soon as possible and to make the necessary corrections, and in any event does not guarantee that access to the data will be uninterrupted.
The CLIENT is required to make on its own media, any backup of its data it deems necessary, and whose storage and preservation are ensured by it under its responsibility.
However, KIFLO carries out a daily backup of the data hosted on behalf of the CLIENT, without this constituting a commitment on the part of KIFLO.
In general, KIFLO is only bound by an obligation of means regarding the Hosting of the Client's data.
The CLIENT is solely responsible for the content, operation and updating of the information and data, in particular personal data hosted and distributed via the SOLUTION and hosted by KIFLO.
The CLIENT undertakes that Users will not download Content that contains or is likely to contain viruses or programs that destroy data or are likely to disrupt the operation of the SOLUTION or to cause any harm to other Users. The CLIENT also undertakes not to insert any Content or remarks that are illicit, illegal or likely to cause harm to public order, morality or the rights of third parties.
In particular, the CLIENT undertakes, without this list being considered restrictive, not to use the SOLUTION under any circumstances to host or transmit content that is offensive, defamatory, racist, xenophobic, revisionist or causing harm to the honor or reputation of others, inciting discrimination, hatred of a person or group of persons because of their origin or their membership or non-membership of a particular ethnic group, nation, race or religion, threatening a person or group of persons, of a pornographic or pedophilic nature, inciting to commit an offence, a crime or an act of terrorism or otherwise, violating the rights of others and the safety of persons and property. The CLIENT acknowledges that the Contents considered as infringing the laws or regulations in force may be handed over by KIFLO to the law enforcement authorities.
The CLIENT undertakes and guarantees KIFLO that it holds all rights relating to the information, data and content hosted by KIFLO on its server.
The CLIENT thus declares that it is the author or has all the necessary rights or authorizations for all Content downloaded from the SOLUTION, particularly when making modifications or when sharing the Content. As such, the CLIENT declares that it holds the intellectual property rights and/or authorizations to reproduce, represent and modify the Content that it downloads and for which it uses the SOLUTION.
The CLIENT is entirely responsible for any creation, transmission or publication of Content through the SOLUTION and for the consequences of its actions.
In particular, the CLIENT undertakes:
- to only send emails from the SOLUTION as part of its activity with its partners.
- not to use the Content sharing service to transmit spam, viruses or prohibited Content.
- to moderate the forums and other public discussion spaces found on the SOLUTION.
- to only use the SOLUTION in compliance with the legal rules and these Terms and Conditions.
The use of the Service, and in particular the storage of the Content, is carried out under the sole responsibility of the Client. It is the responsibility of the Client to comply with the rights of third parties. Therefore, the CLIENT accepts regarding KIFLO all liability, including legal fees, in the event of an appeal, a complaint or a claim against it by any third party who considers itself to be prejudiced by the Content integrated by the CLIENT or a User authorized by the CLIENT.
If the data transmitted by the CLIENT as part of the use of the SOLUTION include personal data, the CLIENT guarantees KIFLO that it has carried out all the obligations incumbent upon it under the terms of Law No. 78-17 of 6 January 1978, known as the “Data Protection Act” and the General Data Protection Regulation, known as the “GDPR”, and in particular that it has informed the natural persons concerned of the use made of the said personal data. As such, the CLIENT guarantees KIFLO against any appeal, complaint or claim emanating from a natural person whose personal data is reproduced, transmitted to other Users or simply hosted via the SOLUTION.
Hosting is carried out under subcontracting by Microsoft Azure. The servers are located in Europe and no transfer is carried out in a third country. The CLIENT can ask KIFLO for the security measures implemented by Microsoft.
Article 14 – Updates / Additional services
Updates are available on the tool for the CLIENT as soon as they are put online, unless the updates or new features are subject to an additional fee. Then the CLIENT will be offered to subscribe to it.
KIFLO will also be able, at the request of the CLIENT, to provide additional services whose description, financial conditions and duration will be the subject of a commercial proposal and a particular agreement between the parties. Any oral agreement is null and void. This may include, in particular, personalized training in the use of the SOLUTION, or assistance and advice in the implementation and use of the SOLUTION.
Article 15 – Responsibility of KIFLO
15.1 Responsibility regarding the WEBSITE
KIFLO endeavors to ensure to the best of its ability the exactitude and the update of the information disseminated on the WEBSITE, which it reserves the right to modify, at any time and without notice. However, it cannot guarantee the accuracy, precision or exhaustiveness of the information appearing on the WEBSITE. Consequently, it declines all responsibility for any imprecision, inaccuracies or omissions concerning the information available, as well as all responsibility for any damage resulting from fraudulent intrusion by a third party leading to a modification of the information contained on the WEBSITE.
Similarly, the photographs illustrating the SOLUTION are representative only. Consequently, KIFLO cannot be held responsible for any error in one of these photographs.
In addition, the use and navigation of the WEBSITE are made under the responsibility of the CLIENT. KIFLO declines all responsibility and cannot be held responsible for any damage or virus which could affect the computer equipment or any other material during the access to the WEBSITE, the use of the WEBSITE or the navigation on the WEBSITE.
15.2 Responsibility regarding the SOLUTION
KIFLO undertakes to provide all the care and diligence necessary for the performance of the SUBSCRIPTION and the use of the SOLUTION by the CLIENT. Only the obligations expressly defined in the selected package and within these Terms and Conditions will be the responsibility of KIFLO.
Generally speaking, KIFLO is only bound by an obligation of means, and the CLIENT may only trigger the responsibility of KIFLO by proving a breach of this Contract.
In the event that the liability of KIFLO is triggered, it will only be engaged for the compensation of a true, direct, personal and certain prejudice suffered by the CLIENT, provided that the CLIENT provides the proof that the failure or fault of KIFLO caused this prejudice.
Thus, the responsibility of KIFLO can in no case be engaged:
- For the compensation of indirect injuries, loss(s) of exploitation, productivity, profits, brand image, contract(s), investment(s), time, data, file(s), computer program(s), including to replace the SOLUTION, documentation(s), even if KIFLO has been advised of the possibility of such losses.
- In case of force majeure as defined below.
- If the damage is caused by an act or an infringement of the CLIENT or a third party.
In all cases, the liability of KIFLO is expressly limited to the direct damage suffered by the CLIENT, up to an amount equal to the sums actually received by KIFLO by virtue of the SUBSCRIPTION subscribed to by the CLIENT during the two (2) years preceding the damaging event.
Under penalty of foreclosure, the time limit for liability action against KIFLO may not exceed one (1) year from the date of knowledge of the damage.
The CLIENT must do everything possible to minimize the injury that it may suffer as part of the SUBSCRIPTION and the use of the SOLUTION.
KIFLO only make commitments towards the CLIENT. Consequently, if a legal action is brought by third parties, such as subsidiaries of the CLIENT, clients of the CLIENT or the Partners of the CLIENT, against KIFLO, the CLIENT shall provide KIFLO with a guarantee.
In any event, the responsibility of KIFLO will not be engaged and no compensation will be due in the following cases:
- Deterioration of the SOLUTION due to the CLIENT and/or non-compliance with the advice given by KIFLO.
- Misuse of the terminals by the CLIENT.
- Partial or total destruction of the CLIENT's data hosted by KIFLO as a result of errors directly or indirectly attributable to the CLIENT, including any User authorized by the Client, or due to a third party having accessed the SOLUTION using the CLIENT's username and password.
- Damage or viruses that could affect the computer equipment or any other material when accessing the SOLUTION, using the solution, downloading any content, data, text, images or files from the SOLUTION.
Finally, KIFLO may not be held liable for the total or partial non-compliance with an obligation and/or failure of the operators of the transport networks to the Internet world, and in particular of the CLIENT's access provider(s). As such, KIFLO informs the CLIENT that its services depend on other technical operators and that KIFLO cannot be held liable for their failure.
Article 16 - Protection of personal data
16.1. KIFLO as Data Controller
As part of the provision of the service, KIFLO collects personal data of the Administrator of the Client as well as those of the person who validates the order to make sure the client follow-up is ensured. The collected data are:
- Email address
- First name
- Last name
- Position within the client company
KIFLO collects and processes the personal data of the Administrator of the Client for the following purposes:
- Provision of the service.
- Management of the order.
- Commercial relationship, payment, invoice...
- Answer the possible questions/claims of the Clients.
- Management of the requests of the rights of access, of rectification and to object.
- Management of unpaid invoices and litigation.
- Management of the Contract, maintenance,….
The personal data relating to these persons are stored for the duration of the Contract and up to three years after the end of the Contract and after the last contact with the Client for canvassing purposes. The personal data of the person who validated the order are kept for the time provided by law for the conservation of contracts.
The personal data of the persons concerned are processed by the commercial and technical service of KIFLO as well as by the possible subcontractors of the Service Provider, technical and intermediary service providers necessary for the performance of the Contract.
KIFLO may also communicate the personal data for cooperation with the administrative and judicial authorities’s purposes.
KIFLO ensures the security of the personal data of the persons concerned in an adequate and appropriate manner and has taken the necessary precautions in order to preserve the security and confidentiality of the data and in particular to prevent them from being distorted, damaged or communicated to unauthorized persons.
The legal basis of the processing carried out by KIFLO is contractual, formalized by this Contract which the CLIENT must accept. The purpose of the processing is the proper performance of this Contract.
The persons concerned are informed that they may exercise, in accordance with the provisions of Law 78-17 of 6 January 1978 as amended and the GDPR, their right of access, rectification, deletion, to request the limitation of the processing and the portability of their data by contacting KIFLO at firstname.lastname@example.org or by mail addressed to KIFLO, 7 impasse Denis Dulac - 94700 Maisons-Alfort, mentioning their full contact details (company name/last name, address, phone, email address and specifying the subject of the request).
The persons concerned may, if necessary, appeal to the internal control authority, the CNIL in France.
16.2. KIFLO as processor
When the CLIENT uses the SOLUTION to process personal data of Users or non-Users (leads, Partners, employees), the CLIENT is acting as data controller and KIFLO as processor.
The data processed by the processor are, in particular, last name, first name, position within the company, photo, email address. As the Client is free to define which data it wishes to store via the Solution, it is the responsibility of the Client to inform KIFLO of the data whose processing is entrusted to it as a processor.
The purposes for the processing entrusted by the CLIENT to KIFLO are the hosting and processing steps via the services of the SOLUTION. The CLIENT must specify in writing if processing for other purposes is entrusted by the CLIENT to KIFLO.
KIFLO undertakes (i) as a processor not to process the data entrusted to it otherwise than in accordance with the conditions of the Contract and (ii) not to carry out any other processing of the data which is not provided for in the Contract, except according to the prior written, documented and legitimate instructions of the CLIENT. The Client must specify to KIFLO the storage periods of the data which KIFLO processes as processor. The CLIENT may, at any time and freely, delete the data which it has processed by means of the SOLUTION. The CLIENT is solely responsible for the compliance with the storage period of the data for which it acts as data controller.
KIFLO reminds the CLIENT that, in application of Article 28.3.al.2 of the GDPR, any instruction from the CLIENT which is likely to result in the non-compliance with the GDPR or the French law on the protection of personal data, entails the obligation for KIFLO to immediately notify the CLIENT. KIFLO reserves the right to refuse instructions from the Client which it would deems to be unlawful within the meaning of Article 82.2 of the GDPR. In this case, a written and documented refusal by KIFLO will not allow the Client to terminate the Contract, except for the Client to be held liable regarding KIFLO for the termination of the Contract deemed “without legitimate grounds”.
The Client authorizes KIFLO to hire sub-processors. KIFLO will inform the Client of any planned changes concerning the addition or replacement of sub-processors, thereby giving the Client the opportunity to object to these changes (Article 28.2 of the GDPR).
KIFLO undertakes to technically process the data of the Client available on the SOLUTION only for the performance of the Contract, to the exclusion of any other use. The personal Data are stored and processed by a hosting service provider subcontracted by the Service Provider, Microsoft Azure, on servers located exclusively on the territory of the European Union and are not subject to any transfer outside the European Union without the prior written consent of the Client, except in application of a decision of adequacy of the European Union which allows a processing service provider to export personal data without specific authorization. The Client may ask KIFLO the security measures implemented by the hosting service provider.
The persons at KIFLO having access to the Clients' data are under a confidentiality obligation.
KIFLO shall delete all Client's data upon termination of the Contract, unless it is under a legal obligation to store them.
KIFLO makes available for the Client, the Data Controller, all information necessary to prove the compliance with the obligations provided for in this Article and to enable audits to be carried out, including inspections, insofar as these audits are not abusive and do not unsettle the provided service. Such audits may not take place more than once a year. These audits can only be carried out after KIFLO has transmitted to the Client elements and/or documentation allowing these questions to be answered. If these elements do not seem sufficient to the Client, a meeting between the Parties will be carried out, the audit being carried out only as a last resort. The audit will be carried out at the expense of the Client. KIFLO has a right of veto over the auditor, in particular if the auditor is a competitor of KIFLO. The audit will be strictly limited to what falls within the scope of the services purposes of this contract. Confidential data or data subject to business secrecy will not be disclosed to the Client.
In accordance with Article 33 of the GDPR, KIFLO undertakes to inform the Client, within a maximum period of forty-eight (48) hours after having become aware of it, of any breach of the security of the Client's data where such breach leads, in an accidental or unlawful manner, to the unauthorized access or disclosure, alteration, loss or destruction of Personal Data. It is then up to the Client to inform (i) the supervisory authority on which it depends, and (ii) the persons concerned when this breach of personal data security is likely to generate a high risk regarding rights and freedoms.
In the event of the occurrence of a breach of security, KIFLO undertakes (i) to take as soon as possible all appropriate technical corrective measures to put an end to the breach of security identified, in particular in order to make the data incomprehensible to any person not authorized to have access to it and to apply them to the data concerned by this breach of security and (ii) to justify this in writing without delay to the Client.
The Client is solely responsible for the lawfulness of the collection and processing and for all the obligations arising from the right of personal data, in particular to inform the persons concerned in accordance with Article 13 of the GDPR and to respect their rights. When sharing a personal database, the CLIENT undertakes to ensure that the legislation on personal data is respected by itself and by the recipient of the sharing.
In the event of a request for the exercise of rights transmitted to the CLIENT by a person concerned, KIFLO will transmit to the Client all elements enabling the request to be respected. The Client is responsible for checking the legitimate nature of the request to exercise the rights.
Article 17 - Insurances
The CLIENT agrees to take out and maintain at its expense, throughout the duration of the SUBSCRIPTION, an insurance policy that is adequate and/or required by law.
Article 18 – Termination
If either Party fails to meet its obligations, the other Party shall notify it of the reason of such failure and shall give it formal notice by registered letter with acknowledgement of receipt to remedy it within thirty (30) days of receipt of the letter. If the defaulting Party fails to remedy the breach within this period, the SUBSCRIPTION may be terminated by right at the defaulting Party's expense by registered letter with acknowledgement of receipt, without prejudice to any compensation that may be claimed from it.
In the event of termination by KIFLO as a result of proven breaches by the CLIENT, the termination will not give rise to any repayment, without prejudice to the damages to which KIFLO may be entitled.
In the event of termination by the CLIENT due to the proven failures of KIFLO, the CLIENT will be entitled to repayment of the period of the SUBSCRIPTION not completed in proportion to the remaining duration of the SUBSCRIPTION from the effective date of termination.
Article 19 – End of the contractual relationships
In the event of termination of the contractual relationships, whatever the cause, KIFLO will proceed with the reversibility of the Contents hosted on behalf of the CLIENT (databases, documents, videos,...) in a format freely chosen by KIFLO and will then proceed with the destruction of the said data.
From the date of termination of the SUBSCRIPTION, whatever the cause, the CLIENT will no longer be able to access the SOLUTION.
In accordance with Article 1230 of the French Civil Code, the provisions which by their nature survive the termination of the Contract (in particular the obligation of confidentiality and the attribution of competence) shall survive the expiry of the contractual term or the effective termination of the Contract, regardless of the reason and/or the basis thereof.
Article 20 - Force majeure
In the event that the non-performance of any of the Parties' obligations is due to a case of force majeure, as defined by the French Civil Code, the commitments of each of the Parties under the SUBSCRIPTION shall be initially suspended.
The Party that seeks to rely on a ground for exemption of force majeure will inform the other Party by fax as soon as it occurs. It will also inform the other Party without delay of the suspension of the said ground. If the force majeure event lasts for more than two (2) months as of its notification to the other Party, either Party may terminate the SUBSCRIPTION by registered letter with acknowledgement of receipt without the other Party being able to claim damages as a result.
Are considered as cases of force majeure with respect to the obligations of the Parties, events that are beyond their control and that they could not reasonably be required to foresee, insofar as their occurrence makes the performance of their obligations more difficult or costlier. This shall be the case in particular, without this list being exhaustive, of the cases usually retained by the case-law of the courts, of cases of war, riots, natural disasters, embargoes, epidemics, disruption of means of transport or communication channels, acts of government, changes in the regulations applicable to these Terms and Conditions or to the SOLUTION, internal or external strikes, internal or external failures or breakdowns, failure of the Internet network and, in general, any event that does not allow the proper performance of the contractual obligations.
In any case, in the event of force majeure, the responsibility of the defaulting Party may not be engaged under any circumstances.
Article 21 – Confidentiality
The Parties are bound by a reciprocal and general obligation of confidentiality towards third parties.
Each Party is therefore bound not to disclose the confidential information of the other Party that comes to its knowledge during the course of the SUBSCRIPTION.
Any information of a financial, commercial, technical, intellectual or industrial property nature relating to a Party or to the SOLUTION, in particular know-how, source codes of KIFLO's software, is considered to be “confidential information” within the meaning of this Article if it is communicated by the other Party, whether in writing, digitally or by computer or verbally, that is marked “confidential” or “private property”, or which is obviously of a confidential nature or the private property of the issuing Party.
This obligation of confidentiality shall not apply to information of which the receiving Party was already aware before receiving it and of which it had free disposal, to information that has fallen into the public domain without breaching this confidentiality clause, and to information created by the receiving Party.
This obligation of confidentiality shall subsist for a period of five (5) years after the end of the contractual relationships between the Parties.
Article 22 – Subcontracting
KIFLO reserves the right, which is accepted by the CLIENT, to subcontract all or part of the services, purpose of the SUBSCRIPTION, or to call upon the particular skills or experience of third parties, experts or service providers.
Article 23 – Advertising
KIFLO is authorized to quote the name of the CLIENT as reference among its clients list.
Article 24 – Assignment
The SUBSCRIPTION is concluded in consideration of the person of the CLIENT.
In this regard, it will not, without having obtained the prior written consent of KIFLO, be the subject of a total or partial assignment, whether in return for a fee or free of charge, due to the CLIENT.
This clause also applies in the event of a project of assignment of full ownership or of a split-up property of the business goodwill or of the securities of the CLIENT's company, lease management, contribution to a company, merger, demerger, partial assignment of assets, modification in the person of the legal representative or of the partners or shareholders.
However, as an exception to the principle stated above, the CLIENT may carry out such an assignment or transfer of the Contract to another entity controlling it or which would be under its control. This assignment or transfer of the Contract will be admitted after prior notification to KIFLO. The CLIENT will then remain guarantor of the obligations of the transferee entity for the entire duration of the SUBSCRIPTION and its possible renewals.
In this context, in the event of assignment of the CLIENT or the SUBSCRIPTION as defined above, KIFLO will be entitled to terminate the SUBSCRIPTION based on this clause.
On the other hand, KIFLO reserves the right to freely assign or transfer the SUBSCRIPTION to a third party, which the Client accepts.
Article 25 - Modification of the Terms and Conditions
Taking into account the possible evolutions of the WEBSITE and the SOLUTION, KIFLO reserves the possibility of adapting or modifying these Terms and Conditions at any time.
The Terms and Conditions then in force will be applicable to all orders placed as from the moment they are posted on the WEBSITE. Regarding the ongoing SUBSCRIPTION, the modified Terms and Conditions will be submitted to the CLIENT where applicable. In the event of refusal to validate the new Terms and Conditions, those in force at the time of the Order shall remain applicable until the end of the current SUBSCRIPTION. The new version shall only be applicable as of the tacit renewal.
In the event that any one of the provisions of the Terms and Conditions is considered illegal or unenforceable by a court decision, the other provisions shall remain in force.
Article 26 – Agreement on evidence
The Client's “clicks” made by the Client as part of the acceptance of these Terms and Conditions, but also as part of the order and payment, constitute acceptance of the Contract.
The computerized registers stored in the computer systems of KIFLO, will be stored under reasonable conditions of security and will be regarded as the proof of the communications, orders and payments occurred between the parties.
The archiving of orders and invoices is carried out on a reliable and durable media which can be produced as proof.
Article 27 - Applicable law – Election of jurisdiction
These Terms and Conditions are subject to French domestic law, excluding any international convention.
In the event of a dispute relating to these Terms and Conditions, as well as to the commitments they govern, the Parties shall try as far as possible to resolve their dispute amicably, within one month of notifying the other Party by registered letter with acknowledgement of receipt, either directly or by calling upon a mediator appointed by mutual agreement.
IN THE EVENT OF FAILURE, THE LITIGATION WILL HAVE TO BE BROUGHT, EVEN IN THE EVENT OF SUMMARY PROCEEDINGS AND NOTWITHSTANDING PLURALITY OF BODIES OR PARTIES, OR GUARANTEE CLAIM, BEFORE THE COMPETENT COURTS OF MAISONS-ALFORT (94), PLACE OF THE REGISTERED OFFICE OF KIFLO, TO WHICH THE PARTIES ELECT JURISDICTION, EXCEPT IN THE CASE WHERE ANOTHER JURISDICTION WOULD BE DESIGNATED COMPETENT BY THE RULES OF PUBLIC ORDER IN PARTICULAR OF THE RIGHT OF LITERARY AND ARTISTIC PROPERTY.
Article 28 - Translation
This Contract is executed in French. In the event this Contract is translated into a language or languages other than French, this version in French shall be controlling on all questions, interpretations or performance, and the French language text shall in any event prevail.