Nicoka is an all-in-one software product, born of more than 15 years of expertise, bringing together CRM, ATS and HRIS in a complete SaaS (Software as a Service) solution, designed by and for recruitment and human resources professionals. Nicoka is published and marketed exclusively by ORINEA SARL (Companies Register no. 518 090 733) (hereinafter the Publisher) in the form of a platform made up of a set of modules or applications (hereinafter, including the Documentation, the « Solution »). The Solution is modular and the Client has opted for all or part of these Applications in the quotation it has accepted, those options being hereinafter referred to as the « Applications » and together making up the Solution. The Client has declared its interest in using the Solution and has accepted a quotation to that end, the quotation accepted by the Client therefore constituting a purchase order within the meaning of these General Terms of Service of the Publisher (hereinafter the « Purchase Order »).

The Client declares that, before subscribing to this Agreement, it had access to all the necessary informational and technical characteristics, and that it obtained any clarifications it requested concerning how the Solution works and what it contains. This agreement is made up of, in decreasing order of precedence, the Purchase Order, these General Terms of Service and their Schedules (hereinafter together the « Agreement »). Where one or more provisions of any of the above documents conflict, the higher-ranking document prevails.

The Client declares that the information it provided in the Purchase Order is accurate and genuine, and undertakes to inform the Publisher in writing of any change to it. Any of the documents making up the Agreement may be amended by the Publisher at any time to reflect changes in the services offered under this Agreement, on legal, economic and/or technical grounds, but without calling into question the fundamental economics of the Agreement, provided the Publisher informs the Client by written notice, by any means, thirty (30) days before those amendments take effect. After that period, the Agreement as amended is automatically binding on the Client.

ARTICLE 1 - DEFINITIONS

For the purposes of this Agreement, words and expressions beginning with a capital letter have the following meanings:

« Application » means a complete module or a set of features of the Solution chosen by the Client when signing the Purchase Order.

« Client » means the legal entity and professional client, identified as and signatory to the Purchase Order, acting in the course of its professional activity and wishing to use the Solution.

« User Account » means an access opened for a named User under the Client's responsibility, recorded by the Super Administrator in the Administration Console, with its own login and password. The Client chooses a maximum number of Users in the Purchase Order, known as the base licence. It may then add new Users by purchasing tokens, in accordance with the procedure set out in the Documentation. Adding Users constitutes an amendment to the Agreement, limited to its financial provisions by way of a price increase, all other terms of the Agreement remaining unchanged. Use of the Solution by any User takes place under the control and responsibility of the Client, which keeps the list of Users up to date and provides it to the Publisher on first request. The Super Administrator is also a User.

« Administration Console » means the dashboard on which the Super Administrator has the broadest access rights for managing the Applications and configuring the Solution. This module is reachable within the Solution's application by the Super Administrator alone, using the login and password created when the order was placed. It allows Users to be created or deleted and permissions to be managed, among other things. Changes made in respect of the Applications may affect the pricing terms set out in the Purchase Order.

« Documentation » means, in particular, the « Premiers Pas » user guide, the Solution's instructions for use, freely available in electronic form, including all written provisions describing how the Solution works, together with a description on the support.nicoka.com website and its FAQ.

« Super Administrator » means the natural person holding the broadest rights and authorised, among other things, to assign User accounts through the Administration Console, to which that person alone has access, giving access to the Solution for professional purposes only and in compliance with this Agreement. The Super Administrator is an employee of the Client. Any further obligation of the Super Administrator is set out in the Documentation. Only the Client's legal representative may, at any time, withdraw those rights by express written request to the Publisher.

« User » means the named natural person whose access to the Solution has been authorised by the Super User through its Administration Console.

ARTICLE 2 - PURPOSE

The purpose of this Agreement is to make the Solution available, as determined in the Purchase Order and in the Agreement, for the benefit of the Client and its Users, for their own personal requirements, on a non-exclusive basis.

ARTICLE 3 - TERM

This Agreement takes effect on the date the Client signs the Purchase Order and runs for an indefinite term. Either Party may terminate it at any time by registered letter with acknowledgement of receipt, giving one (1) month's notice, any month begun being payable in full and the notice period starting on the first day of the following calendar month.

ARTICLE 4 - MAKING THE SOLUTION AVAILABLE

4.1. How the Solution is deployed is set out in the Documentation. The Client declares that it has read all the information contained in that Documentation before signing this Agreement and that it accepts it as it stands and without reservation. The Client therefore declares that it had all the information it needed, in particular to determine for itself whether the Solution suits its requirements.

4.2. It is for the Client alone, at its own cost and under its sole responsibility, to obtain the technical means, including internet access (hardware, software, networks and so on), and the skills needed to access the Solution and carry out all permitted operations, with no recourse against the Publisher in the event of damage arising from a misunderstanding or mishandling.

4.3. On first use, the Publisher will carry out the initial configuration of the Solution and of the Applications chosen by the Client. Any subsequent configuration requested by the Client may be carried out by the Client alone through the Administration Console, on the basis of the Documentation. The Super Administrator may thus increase the number of Users and/or the number of Applications, such changes constituting an amendment solely in respect of the pricing terms of the Agreement. The Client may also ask the Publisher to make those configuration changes, in which case the Publisher will issue a quotation for the Client's acceptance, at its rates in force on the date of the request. As a rule, the Solution does not allow bespoke configurations to be set up under this Agreement. Under this Agreement, the Publisher does not provide software development services, nor the addition of new features or the alteration of existing features of the Solution. Such work, subject to feasibility and to the Publisher's agreement, requires acceptance of a quotation and the conclusion of a separate agreement known as an « Integration Agreement ».

4.4. The Parties agree that holding a kick-off meeting for the deployment of the Solution is an important milestone in getting the Solution up and running. The Publisher convenes the meeting by any means and with reasonable notice. The meeting is held on the terms decided by the Publisher (in person or remotely) in the presence of the Client's project manager or of any person with decision-making authority. If it proves necessary during the meeting, the Client undertakes to send the Publisher without delay any information, documents or data enabling the Solution to be got up and running. The Client understands and accepts that a failure on its part to take the steps needed to attend the kick-off meeting, or to provide information, documents or data required to get the Solution up and running, is a breach of the Client's duty to cooperate.

ARTICLE 5 - HOW THE SOLUTION IS ACCESSED

5.1. After the kick-off meeting provided for in article 4.4 above, the Publisher provides the Client's legal representative, or any person designated by that representative, with a login and a password (hereinafter the « Access Code ») to access and use the Solution as Super Administrator. The Client undertakes to set up its own Access Code, which must be alphanumeric and at least 12 characters long, including upper and lower case letters, digits and special characters. The Publisher informs the Client that this information is hashed.

5.2. The Client is the sole keeper of, and is solely responsible for, the Access Code and undertakes not to disclose it to any third party, other than the Super Administrator and authorised Users, on any pretext whatsoever, and to keep it strictly confidential. It is for the Client to manage the Access Code and to ensure that only authorised Users access the Solution and use it in accordance with the Agreement. The Client undertakes to inform the Publisher without delay by any written means, confirmed without delay by registered letter where the facts are sufficiently serious, as soon as it becomes aware of any risk of misuse or unauthorised use of its Access Codes.

5.3. The Client undertakes to declare to the Publisher by email the identity and exact number of Users, and to inform it without delay of any change during the term of the Agreement. The number of Users is set out in the Purchase Order. Where a User leaves during the term of the Agreement, the Client must inform the Publisher by email and arrange that User's replacement without delay, stating it in the same email. Any month begun is invoiced in full. Invoicing depends on the number of Users and the number of Applications subscribed for. The number of Users may go up or down, but may never fall below a minimum of one (1) User.

ARTICLE 6 - HOW THE SOLUTION IS USED - THE CLIENT'S OBLIGATIONS

6.1. The Client is responsible for its own use of the Solution, and for that of its Users, in accordance with the Documentation made available and with the legal provisions, standards and regulations in force. That use must be exclusively professional. The Client also acknowledges having been advised to take up the training provided by the Publisher.

6.2. In particular, the Client will ensure that any use it or its Users make of the Solution, and any data or settings it or they enter into it, is free of errors, stable and not liable to disrupt the operation of the Solution.

6.3. The Publisher also draws the Client's attention to the fact that it is for the Client to take all steps to secure its own data and to check its quality and, where necessary, to take out insurance covering the consequences of that type of risk. The Publisher cannot be held liable for the consequences of the loss, alteration or damage of the Client's data where the Client has not kept a backup copy.

6.4. The Client remains, at all times, the keeper of its information system, of the accesses to the Solution made available to it, and of its data and of any files stored in any way within the Solution. It is also for the Client to take all appropriate measures to protect its own data and/or software stored on its equipment from infection by viruses, logic bombs, Trojan horses and the like, or any other harmful or destructive program, and from attempts by third parties to intrude into its company's information system through its use of the Solution.

6.5. The Client is solely liable for direct or indirect, material or immaterial loss and damage caused by itself, its Super Administrator, its Users or its staff, to the Publisher and/or to any third party, and undertakes to indemnify the Publisher against any claim, demand and/or award of damages with which the Publisher may be threatened or which may be made against it, including reasonable legal fees the Publisher may have had to incur, where these arise from, are based on or originate in any content entered into the Solution and/or any use of it.

6.6. Should the Client fail to comply with the obligations set out in this Agreement, or breach any legal or regulatory obligation, the Publisher reserves the right to suspend access to the Solution or to terminate this Agreement.

ARTICLE 7 - INVOICING AND PAYMENT

7.1. The Purchase Order sets out the rates and financial terms of the relationship between the Parties, which may include set-up fees, a subscription payable monthly in advance, rates that may vary according to the choice and number of additional and optional Applications, and royalties or fees. On each anniversary of this Agreement, the financial terms applied to the Client will automatically be index-linked, by operation of law, in line with the Syntec index and its movements.

7.2. All amounts owed by the Client under this Agreement are payable on receipt of the invoice for the Solution and its Applications, or by direct debit from the bank account for which a SEPA direct debit mandate was provided by the Client when subscribing through the Purchase Order, within the same timeframes (hereinafter the « Payment Bank Account »). The Client undertakes to keep the Payment Bank Account sufficiently funded throughout the term of this Agreement. Should the Client wish to change the Payment Bank Account, it undertakes to do so with at least two (2) months' notice and to provide the corresponding bank details and any necessary information requested by the Publisher.

7.3. In the event of late payment, and without prejudice to any other remedy, contractual or otherwise, the Publisher may charge compound default interest at a rate equal to the higher of the following two rates: (i) three (3) times the French statutory interest rate; or (ii) the European Central Bank rate plus ten (10) points. The Publisher is also entitled to obtain from the Client at least a fixed sum of 40 euros (or any other amount set by the applicable regulations) as compensation for recovery costs.

In the event of non-payment, the Publisher reserves the right to suspend access to the Solution and its features, or to terminate this Agreement.

7.4. Invoicing is tied to the number of Users set out in the Purchase Order, which may change during the term of the Agreement through the action of the Super Administrator in accordance with the provisions made for that purpose, and may never fall below one (1) User.

ARTICLE 8 - SUPPORT, SLA AND UPDATES

8.1 Corrective support and SLA

Corrective support, which consists in correcting any malfunction of the Solution, is reserved to the Publisher. Corrective support and the level of the services known as the Service Level Agreement (SLA) are described in Schedule 1 to this Agreement. Any digital support operation requested by the Client takes place by raising a ticket in accordance with the terms described in Schedule 1 to this Agreement.

8.2. Updates

8.2.1 In providing update releases, the Publisher will endeavour to maintain a sufficient level of quality in the Solution. To that end, the Publisher will provide the Client, throughout the term of its subscription and whenever it considers it necessary, with update releases of the Solution. The Publisher reserves the right to interrupt the availability to Users of all or part of the Solution in order to carry out updates, maintenance and/or improvement work. In such a case, except in an emergency, the Publisher will notify the Client of those interruptions by email.

8.2.2 Updates include, where applicable, the updating of the Documentation. The Publisher cannot, however, warrant to the Client that updates will suit the Client's specific requirements.

8.2.3. The Client undertakes to have, within its information system, workstations, terminals or equipment compatible with the Solution, and a technical environment including an internet connection that is sufficient and compatible with the technical prerequisites for the Solution to work.

8.3. Interoperability

The Solution may interoperate with certain third-party applications, listed exhaustively in the Documentation, by means of APIs provided by the Client, it being recalled that the Publisher cannot be held liable in the event of an interruption or failure of the third-party application.

ARTICLE 9 - CONFIDENTIALITY

Each Party undertakes to keep confidential all information of any nature whatsoever, in particular of a technical, commercial, financial, personal or other nature, concerning the other Party's business, and of which it becomes aware in the course of performing this Agreement. To that end, the Parties will take all steps required to preserve the strictly confidential nature of that information. This duty of confidentiality binds the Parties for the term of the Agreement and for three years after it ends.

ARTICLE 10 - EVIDENCE AGREEMENT

10.1 The Client's use of the Access Codes constitutes evidence of the Client's use of the Solution and of that use being in accordance with the documentation and the Agreement, this provision constituting an evidence agreement within the meaning of article 1368 of the French Civil Code.

10.2 In the event of a dispute over the use of the Solution, the Parties agree that the records made by the Publisher's equipment during use of the Solution, and in particular the use of the Client's Access Codes and any information appearing in the Administration Console, including the number of Users, following action by the Super Administrator, will be conclusive and will constitute evidence between the Parties pursuant to article 1368 of the French Civil Code. It is therefore expressly agreed that all technical information concerning the Client, including records and statistics, will be kept and archived by the Publisher for evidential purposes.

10.3. Where there is difficulty in accessing or using the Solution, the Publisher will refer to the written request made by the User. The preferred route is to raise a support ticket, available within the Solution. The User may also write by email to support.nicoka.com or contact the support teams by telephone from Monday to Friday, during business hours, from 10 am to 6 pm, French time.

10.4. As licences are named and cannot be split, the login must be tied to the email address of a personally identifiable User. The Publisher may request additional invoicing where the Solution's connection data does not match the number of Users declared under the Purchase Order.

ARTICLE 11 - INTELLECTUAL AND INDUSTRIAL PROPERTY

11.1. The Client acknowledges that the Agreement confers on it no title or property right over the Solution or the elements making it up. The Solution and the Solution Data are, by default and save for data legally released as open data or open source, the property of the Publisher, which designed and created them, and are protected by intellectual property law. Accordingly, the Client will comply with, and ensure compliance with, all notices relating to the Publisher's property rights appearing on the elements making up the Solution and its Applications, and on all their media. The Client may use all or part of the Solution and its Applications only for its own professional requirements, the right of use granted being reserved to the Client and to authorised Users, within the limit of the number of authorised Users permitted by the Agreement.

11.2. In particular, the Client is not authorised to copy, modify, decompile, alter or adapt, including by translation or correction, all or part of the Solution. Likewise, this Agreement does not authorise the Client to sell, rent, sub-license, lease or distribute the Solution by any means, even temporarily. Finally, the Solution Data may constitute a database within the meaning of Title IV, Book III of the French Intellectual Property Code, of which the Publisher is the producer, prohibiting any extraction or re-use of the Solution Data without its prior consent.

11.3. The Client expressly authorises the Publisher to list it as one of its commercial references and to use the Client's name and logo for that purpose on the Publisher's official website and in its marketing and sales materials, unless the Client gives written notice that it wishes to withdraw that authorisation.

ARTICLE 12 - LIABILITY

12.1. Use of the Solution is granted « AS IS » without warranty of any kind, express or implied, as to its quality, performance or results. Access to the Solution is reserved to professionals. The risks inherent in its quality, performance or results rest with the Client alone. The Client therefore acknowledges that it was able to assess the capabilities of the Solution. Under this Agreement, the Client may not require new services, new features or enhancements to be put in place, save for services, corrections or changes made voluntarily by the Publisher, which the Client then undertakes to accept. It will, however, be possible to agree new development work in a separate agreement between the Publisher and the Client.

12.2. The Publisher may on no account be held liable for loss or damage caused by use of the Solution, including in the event of loss of data or of the unavailability of its elements, such as in particular the unavailability of Solution Data and especially of data legally released as open data or open source provided by third parties, who may stop providing it at their sole discretion, the Publisher being unable to warrant the permanent availability of that data, in particular given its legal status.

The Publisher will not be liable for unavailability of the Solution caused by a failure of electronic communications operators or of its host. The Publisher will not be liable for unavailability of the Solution caused by a lack of network coverage or insufficient network capacity on the Client's part. The Publisher will not be liable where data made available by third-party open data or open source publishers is interrupted. The Publisher will not be held liable for incorrect information sourced from third-party open data or open source.

12.3. The Publisher will not be liable for any loss or damage originating in use of the Solution together with software or hardware used by the Client or by any User, in any technical problem of the Client's, in any problem relating to services provided by any third party, or in any problem internal to the Client. It is for the Client to take out the maintenance contracts needed for its equipment, to establish all procedures for updating its information systems and backing up data, and all business recovery or continuity procedures and plans. Any liability of the Publisher is therefore expressly excluded for any loss or damage arising from third-party hardware or software forming part of the information system of the Client or its Users.

12.4. The Publisher assumes a duty of best endeavours in performing its obligations. Accordingly, the Publisher may not be held liable for defects in the operation of the Solution. The Publisher does not warrant that the Solution will operate continuously or be free of errors. The Publisher's liability may be established only in the event of gross negligence or proven carelessness in performing its obligations, and will be expressly limited as set out below, to the exclusion of all other loss or damage of any nature whatsoever, in particular loss of profit, loss of revenue or of business, loss of earnings, loss of custom, loss of opportunity or other similar losses, invasion of privacy, loss of personal data, any indirect, incidental or consequential loss, loss of information and harm caused to third parties.

The Publisher will not be held liable for loss of time or for any inconvenience caused by the performance of the work it owes under these terms or resulting from a failure of all or part of the Solution.

12.5. Without prejudice to the provisions of this Agreement limiting or excluding the Publisher's liability, where the Publisher's liability is established for loss or damage that is compensatable under this Agreement, its liability will in any event be limited to a maximum amount corresponding to the sums invoiced and collected over a rolling six-month period preceding the date of the event giving rise to the loss.

12.6. The Client will indemnify the Publisher for any loss or damage resulting from a claim against it and originating in a breach of this Agreement.

ARTICLE 13 - PERSONAL DATA

The Publisher undertakes to comply with EU Regulation no. 2016/679, known as the GDPR, and with French Act no. 78-17 of 6 January 1978, known as the Data Protection Act. All the terms and undertakings of each Party regarding the protection of personal data are dealt with in Schedule 2.

ARTICLE 14 - END OF THE AGREEMENT AND REVERSIBILITY

14.1. This Agreement remains in force until the date agreed under this Agreement. Termination may also be effected by the Publisher on receipt of a registered letter with acknowledgement of receipt, automatically and without notice, one month after receipt of a first registered letter with acknowledgement of receipt giving the Client formal notice of its breaches of this Agreement and which has gone unheeded, or without prior formal notice where the Publisher is informed that the Solution is being used for unlawful purposes. Where an invoice from the Publisher goes unpaid fifteen (15) days after its due date, the Publisher may, after sending a registered letter with acknowledgement of receipt one month beforehand which has gone unheeded, at its option and as the case may be, suspend access to the Solution or give notice of termination of all or part of the subscription to Solution licences taken out under this Agreement. In the event of early termination of the Agreement, the Client will owe all sums due in respect of the current contractual period, which fall due immediately. At the end of the Agreement, the Publisher may, at the Client's express written request, within a maximum of fifteen working days after the end of the Agreement for whatever reason, either return all of the Client's data in its possession as a result of performing the Agreement, in a standard format, or destroy it and certify to the Client that the destruction has taken place, subject to and within the limits of the legal and regulatory retention obligations binding on the Publisher.

14.2. Under the Agreement, the Client may expressly request the Publisher in writing to carry out a reversibility operation, consisting in the Publisher handing over the Client's hosted data in a standard format, in a space created and managed by the Publisher from which the Client may download its Data. The Client may request that reversibility in writing during the term of the Agreement and at the latest eight (8) days after it ends, for whatever reason, access to the data being reserved to the Client for five working days, all of the Client's hosted data being destroyed after those periods. The Client undertakes to cooperate actively with the Publisher in order to facilitate the recovery of the data and information. That reversibility operation will be subject to a prior quotation at the Publisher's rates in force on the date of the request, and in respect of data transfer costs only.

ARTICLE 15 - MISCELLANEOUS

15.1. This Agreement constitutes the entire agreement between the Parties as to its subject matter and replaces and supersedes any earlier provisions or agreements, express or implied, and any earlier communication between the Parties relating to it. The Client's subscribing to the Agreement implies its full and unreserved acceptance of it.

15.2. A Party owing an obligation arising under this Agreement will be excused from it if it establishes a case of force majeure. The following are expressly deemed cases of force majeure: natural disasters, total or partial strikes or lock-outs, epidemics, shortage or blockage of ordinary means of transport, shortage of raw materials or components, fire, storm, earthquake, flood, water damage or other damage suffered affecting performance of the Agreement, governmental or legal restrictions and, more generally, any situation beyond the control of the affected Party preventing it from performing the obligation concerned on the agreed terms. Where the force majeure is temporary, performance will be suspended for the period during which performance of the obligation concerned is thus prevented, that delay being excused. Where the force majeure situation or the excused delay continues beyond ninety (90) days, either Party may bring it to an end if it considers it appropriate, without indemnity or compensation to the other Party. In any event, and the Client accepts this without recourse against the Publisher, any delay arising in whole or in part from (a) the total or partial interruption of telecommunications networks, or (b) the default or failure of the Publisher's contractors, such as suppliers or subcontractors, will be excused.

15.3. The Client may not assign this Agreement, either in part or in whole, nor make the Solution available to anyone, even temporarily, whatever the legal arrangement.

15.4. The Publisher may subcontract all or part of this Agreement at its convenience, provided that, on the one hand, it remains responsible to the Client for the proper performance of the Agreement and, on the other, the designated subcontractor is informed of and accepts the obligations placed on the Publisher under this Agreement.

15.5. Any claim and/or dispute by the Client against the Publisher must be raised in writing by the Client at the latest 12 (twelve) months from the event giving rise to it, failing which it is time-barred. The written statement of the claim and/or dispute must in particular include details of the services, amounts and so on that are disputed, and the grounds for the dispute.

15.6. Should any provision of this Agreement prove void under a rule of law in force or a final court decision, it will be deemed not to have been written, without thereby rendering the Agreement void or affecting the validity of its other provisions. The fact that either Party does not insist on the application of any clause of the Agreement, or acquiesces in its non-performance, whether permanently or temporarily, may not be construed as a waiver by that Party of the rights it derives from that clause.

ARTICLE 16 - DISPUTE RESOLUTION

This Agreement is governed by French law. In the event of a dispute over its interpretation and/or performance, and save in the case of non-payment, which allows the competent Court to be seised directly, the Parties agree to attempt to settle the dispute amicably within one (1) month, the more diligent Party inviting the other by registered letter with acknowledgement of receipt, setting out the grievance or grievances and the contractual provisions it considers breached, to a meeting to be held at the address of the Publisher's registered office, with at least five working days' notice. Should the attempt at amicable settlement fail, the dispute will be submitted exclusively to the competent Court of Paris, notwithstanding claims for indemnity or a plurality of defendants, including for urgent or protective measures.