The present General Terms and Conditions of Sale (hereinafter, „GTC„) are concluded by SA Qualifio (hereinafter, „Qualifio“) whose registered office is located at 25 Place de l’Université, 1348 Louvain-la-Neuve, Belgium, registered with the Crossroads Bank for Enterprises under number 0822.741.924, and by the customer (hereinafter, the „Customer“).
Article 1. SCOPE OF APPLICATION
The General Terms and Conditions of Sale apply to all orders placed with Qualifio. An order is valid only in case of explicit acceptance by the Customer of a quotation presented by Qualifio, within the validity period of the quotation. The Customer is deemed to accept the application of these GTC as soon as it accepts a quotation.
Deviations from the GTC may only be made by prior written agreement. The GTC may be supplemented, if necessary, by special conditions of use in the quotation, which supplement these general terms and conditions and, in the event of contradiction, take precedence over them.
In these T&Cs, it is understood that:
„Supervisory Authority“ means the independent public authority established by a Member State under Article 51 of the Regulation.
„Briefing„: document containing all the information about the campaign, including the design.
„Campaign(s)„: competitions, quizzes, polls, surveys, votes, questionnaires, etc. available in the Qualifio software;
„Contents„: all the texts, photos, sound sequences, videos, etc. loaded into the Qualifio Software by the Customer;
„Contract„: the contract concluded between Qualifio and the Customer, including the special conditions, these GTC and its appendices;
„Quotation„: the quotation presented by Qualifio relating to the services to be provided to the Customer;
„Data“ means any information relating to an identified or identifiable natural person (hereinafter referred to as „data subject“); „identifiable natural person“ means a natural person who can be identified, directly or indirectly, in particular by reference to an identifier, such as a name, an identification number, location data, an on-line identifier, or to one or more factors specific to his or her physical, physiological, genetic, mental, economic, cultural or social identity;
„Host„: any host or host(s) chosen by Qualifio to ensure the proper functioning of the Qualifio Software;
„Qualifio Software„: the software published by Qualifio and hosted, consisting of Qualifio Manager (BO) and Qualifio Player (FO) and made available to the Customer under the conditions defined by the Agreement;
„Regulation„: Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC
„Controller“ means the natural or legal person who alone, or jointly with others, determines the purposes and means of the processing operation;
„Processor“ shall mean the natural or legal person, public authority, agency or other body which processes personal data on behalf of and on the instructions of the controller.
„Site„: the Customer’s site, available via the Internet, mobile Internet or a „native“ mobile application;
„Studio Service„: campaign production service provided by Qualifio whereby Qualifio operates its Platform on behalf of the Customer directly in the Customer’s account;
„Process, Treatment„: any operation or set of operations carried out or not using automated processes and applied to Personal Data or sets of Personal Data, such as collection, recording, organisation, structuring, conservation, adaptation or modification, extraction, consultation, use, communication by transmission, dissemination or any other form of making available, approximation or interconnection, limitation, erasure or destruction;
„Customer User(s)“: person(s) working on behalf of the Customer and having access to Qualifio;
„End User“: web or mobile internet user who uses the Customer’s website, social network page or native application;
„Violation of Personal Data“ means any breach of security resulting, accidentally or unlawfully, in the destruction, loss, alteration, unauthorised disclosure or access to Personal Data transmitted, stored or otherwise processed.
Article 2. SUBJECT
The GTC are intended to govern the relationship between Qualifio SA, publisher of the Qualifio Software, and the Customer in the context of the use of the Qualifio Software in the form of a subscription or services peripheral to the use of the software (Studio, specific integrations, etc.).
Article 3. DESCRIPTION OF SERVICES
3.1. LICENCE IN SAAS MODE
Qualifio grants the Customer a non-exclusive and non-transferable licence to use the Software, in SaaS (software as a service) mode, without prior installation on the Customer’s hardware. The technical documentation relating to the use of the Software is made available to the Customer by any useful means. This licence is granted solely to the Customer and for his own use. Consequently, the Customer shall refrain from granting sub-licences to third parties. The Customer expressly refrains from using the Qualifio Software outside the scope of use provided for in the Quotation.
3.2. SET-UP & SUPPORT
In collaboration with the Customer, Qualifio will set up the Customer’s account in the Qualifio Software. To this end, the Customer will answer the questions that Qualifio will address to it with regard to the configuration.
By „parameterisation“ is meant the adaptation of the existing functionalities of the Qualifio Software according to the Customer’s needs, without rewriting all or part of the source code.
The configuration services are described in the Quotation and may include, in particular and without this list being exhaustive, the opening of a Customer account, the creation of templates specific to the Customer’s Site environment, the creation of user accounts, Sites, forms, the training of Customer Users, and technical integrations.
Any use of the Qualifio Software in production by the Customer is tantamount to the Customer’s acceptance of the settings.
3.3. STUDIO SERVICE
The „Service Studio“ is a campaign production service provided by Qualifio whereby Qualifio operates its Platform on behalf of the Customer directly in the Customer’s account.
3.3.2. Procedure & Delivery
188.8.131.52. Briefing. The Customer’s briefing includes the type of campaign, dates, language variations, graphic elements, texts, publication channels, information to be collected from the End Users, technical integrations to be implemented, tagging plan, etc. The production of the campaign will begin once the briefing has been approved by both parties.
184.108.40.206. Modifications. Qualifio will be able to offer a maximum of TWO versions of the layout. However, if necessary and only at the express written request of the Customer, additional versions may be made, at an hourly rate of € 120.00 excluding VAT, which will be invoiced to the Customer. These requests for additional versions will be the subject of a new quotation subject to the same general terms and conditions.
Once the Layout has been approved, the Studio team will integrate the content into the Campaign. The Customer is then authorised to request up to a maximum of three (3) changes. From the fourth request for modifications, these additional services will be invoiced again at an hourly rate of € 120.00 excl. VAT. These requests for additional changes will be the subject of a new quotation subject to the same general terms and conditions.
The Customer agrees and acknowledges that any changes, modifications, additions, which are not included in the initial Brief (for example, but not limited to, change in format/flow/campaign concept, addition of a tagging plan) will lead to the establishment of a new Quotation after analysis of the workload in terms of number of working hours.
220.127.116.11. Verification and testing. The Customer must verify and test the Campaign until the end and experiment with all the scenarios (winners, losers, etc.) on all media (computer, telephone and tablet). Following these verifications, the Customer will send a final validation by email as well as instructions for putting the Campaign online. At the end of a period of three working days starting from the sending to the Customer of the link containing the final preview of the campaign, the Customer is presumed to have validated the campaign and it may be put online. Any online campaign is presumed to be approved by the Customer. Once the campaign is online, no element may be modified.
Qualifio only acts on the instructions and on behalf of the Customer. Throughout the aforementioned service, Customer remains solely and uniquely responsible for the Campaign, its Content, the Information and the Campaign itself.
3.4. ONLINE ASSISTANCE (HELPDESK)
Online support (Qualifio Helpdesk) is available from Monday to Friday from 9:00 to 18:00 CET via the Qualifio Software.
The helpdesk’s response rates are dependent on the severity of the request:
- Critical: Incident – Complete degradation – All users and features affected – Service completely unavailable
- High: Incident – Significant degradation – Large number of users and features affected.
- Medium: Incident or question – Limited degradation – number of users and features affected. Activity can continue.
- Low: Question – Answers can be found in the FAQs.
|1st answer Monday to Friday from 9:00 to 18:00 CET||Level of severity of demand :|
|Standard||60 minutes||120 minutes||120 minutes||360 minutes|
For out of business hours support and „Critical“ or „High“ demands, the following telephone number is available: +32 10 39 03 20. To ensure a response in the middle of the night (CET), please call this number twice within three (3) minutes to activate the duty notification. Medium and Low demands will be followed up under the normal SLA from the following business hour.
Maintenance periods affecting the availability of the Qualifio Software will be notified to the Customer directly on the platform and via the status page (https://qualifio.status.io) at least 48 hours before the start of the maintenance procedure.
Qualifio’s Status Page allows users to be informed in real time of possible planned maintenance: https://qualifio.status.io
3.5.2. Corrective maintenance
Corrective maintenance consists of identifying and correcting any anomaly. An anomaly (hereinafter, „Anomaly“) in one or more programs means that such program(s) either does not terminate correctly or delivers incorrect results, when the Qualifio Software as a whole is correctly configured and parameterised.
The Customer shall notify Qualifio as soon as possible of any Anomalies that it notices through the online assistance contained in the Qualifio Software. It will ensure that it provides Qualifio with all the information requested and will take all the measures recommended by Qualifio to enable Qualifio to identify the causes of the Anomaly.
Corrective maintenance does not cover: support for the Customer’s Website, its network (proxy), its technical environment, adaptation of the Qualifio Software to a setting other than the initial setting. Likewise, maintenance does not cover User handling errors, the Customer’s misjudgment of its own settings or third-party systems.
3.5.3. Evolutionary maintenance
Qualifio has the right to upgrade the Qualifio Software at its sole discretion, provided that the upgrades ensure the functional continuity of the previous version and do not degrade its performance. In the event of a major modification made to the functionalities of the Qualifio Software, Qualifio will provide the Customer with the corresponding documentation in the form of FAQs in the Qualifio Software itself.
3.6. LEVEL OF SERVICES / SLA
3.6.1. Front office (“Qualifio Player”)
Qualifio guarantees a monthly availability level of 99.5% for campaigns published via the Qualifio Software. The uptime percentages are available at the Customer’s request via online support. By level of availability, it is understood that a participant can participate in a campaign from the home screen to the exit screen of the campaigns.
In the event that this availability rate is not reached during a given calendar month, Customer must notify Qualifio in writing within 30 days after the end of the month at the latest. Qualifio will then have an additional period of 30 days to reach this defined daily availability rate.
In the event that, at the end of a second consecutive calendar month, and starting from this one, Qualifio does not reach the defined availability rate, and upon receipt of a new written notification from Customer, the latter may claim penalties according to the following terms and conditions, and this to the exclusion of any other compensation:
- 2% of the monthly invoice amount (total price of the license divided by the number of months) if the availability rate is less than 99.5%;
- 5% of the monthly invoice amount (total price of the license divided by the number of months) if the availability rate is less than 97%;
- 10% monthly billing (total license price divided by the number of months) if the availability rate is less than 95%.
3.6.2. Back office (“Qualifio Manager”)
Qualifio guarantees a monthly availability level of 95% of the campaigns published via the Qualifio Software. The uptime percentages are available at the Customer’s request via online support. By level of availability, it is understood the possibility for a user to create a campaign in Qualifio’s back office.
3.7. HOSTING AND STORAGE
Hosting of the Qualifio Software, the Content and the Data collected in the context of the Customer’s use of the Qualifio Software is provided by the Hosting Company.
The Qualifio Software, the Contents and the collected Data are stored in Europe.
By using the Qualifio Software, the Customer has the possibility of hosting content produced by its teams but also text and multimedia content generated by the End Users participating in its campaigns, in particular for campaigns such as Photo & Video Contests,
The limit of storage made available by Qualifio to the customer is 50 Gigabytes. If this limit is exceeded, Qualifio’s teams will contact the customer to proceed with the deletion of Old Content in order to free up storage space. During the next 3 calendar months, Qualifio’s teams will keep the Customer informed of the evolution of its storage space. Nevertheless, it is possible for the Customer to order additional storage space at the rate of 0.50 EUR per Gigabyte per month and per 10 Gigabytes. The application of this rate by Qualifio will always be discussed and approved by the Customer beforehand.
Article 4. FINANCIAL CONDITIONS, INVOICING AND PAYMENT TERMS
4.1. FINANCIAL AND INVOICING CONDITIONS
The financial and invoicing conditions are set out in the Quotation.
4.2. TERMS OF PAYMENT
Unless otherwise specified in the Quotation, Qualifio’s invoices are payable within thirty (30) days from the date of issue of the invoice, without discount and at Qualifio’s registered office.
In the event of non-payment of all or part of an amount due on the due date, Qualifio will send up to three payment reminders by email.
If within fourteen (14) days following the sending of a third payment reminder by email, no payment has been made to Qualifio’s head office, Qualifio will be entitled to suspend access to the Qualifio Software for all Customer Users.
As of the third payment reminder, Qualifio also reserves the right to issue an alert in the Qualifio Manager part of the Qualifio Software stating that in the absence of payment, the Customer’s account will be suspended after fourteen (14) days.
After notice of default, either electronically or by post, Qualifio reserves the right to increase the amount due with default interest, in accordance with the applicable legislation, without prejudice to its right to pursue reasonable compensation for all collection costs incurred as a result of the late payment.
Any dispute concerning an invoice must be sent by registered letter. If an invoice is not contested within a period of 15 days, it is presumed to have been accepted. In the event of a dispute arising between the parties, whatever the source of the dispute and notwithstanding its existence, invoices not contested at the time of the dispute must be paid. There can be no compensation between any damages claimed by the Customer and the uncontested invoices.
Article 5. CONTRACT DURATION AND TERMINATION
The Qualifio Software is used in the form of a subscription, a campaign pack or a „Service Studio“ project. The details of the services offered for each subscription or project are indicated on the Quotation. A Subscription commences on the day of its subscription, subject to payment of the fixed price provided for in the article „Financial Conditions“, for the period subscribed to by the Customer in the Quotation (the „Subscription Period“), from date to date. Unless otherwise specified in the Quotation, it is then tacitly renewed for successive periods of the same duration, from date to date, unless terminated by Qualifio or by Customer.
The Agreement shall be validly terminated by Customer without compensation if the notification reaches Qualifio no later than three (3) calendar months before the end of the end date of the subscription period as indicated in the Quotation.
Termination by the Customer made exclusively by sending a registered letter with acknowledgement of receipt to Qualifio, at the address mentioned in these GTC. No request for termination by any other means, such as by telephone or email, will be considered. Failure to comply with these terms and conditions will result in the cancellation not being effective and the subscription will be renewed for a new period. In the event of tacit renewal of the contract under the same conditions, the reference index applicable to the contract is the Santé Lissé index for Belgium, the Syntec index for France, the Statec index for Luxembourg, the “Índice de Precios de Consumo” (IPC) for Spain, the consumentenprijsindex (CPI) in Netherlands and legal indexes in force in other countries.
5.2. TERMINATION FOR DEFAULT
In the event of failure by one of the parties to fulfil one of its obligations under the Contract, the other party may invoke the termination of the Contract, at the expense of the party at fault, if the latter still fails to fulfil its obligations thirty (30) calendar days after having received a specific formal notice on this subject, notified by registered letter, without prejudice to its right to pursue full compensation for its damage.
5.3. EXPRESS RESOLUTORY CLAUSES
The Contract may be terminated by either party with immediate effect and by operation of law by written notice to the other party in the following cases:
- in the event of fraud on the part of the other party, i.e. any act consisting in deliberately misleading the other party;
- in the event of gross negligence on the part of the other party, consisting of a total or definitive non-performance of one of the obligations or services of that party which makes it definitively impossible to continue and maintain the Contract. The notion of gross negligence does not include partial non-performance, delay in performance, incorrect performance of the obligations or services of one of the parties, or any exceptional technical incident when this incident cannot reasonably be attributed directly to one of the parties and it is not proved that this party has failed to take reasonable measures to prevent the incident ;
- if the other party is declared bankrupt or is admitted to a judicial reorganisation procedure, or becomes insolvent or makes a transfer in favour of creditors or a general arrangement with creditors;
- if the other party ceases its activities or adopts a resolution for dissolution or liquidation.
Article 6. OBLIGATIONS OF THE CUSTOMER
Without prejudice to the other obligations provided for herein, the Customer undertakes to respect the following obligations:
6.1. COLLABORATION WITH QUALIFIO
Customer undertakes to collaborate closely with Qualifio for the execution of the Agreement and will ensure that it appoints a person within its ranks responsible for ensuring communication with Qualifio’s services. The contact details of this person will be mentioned in the Quotation.
6.2. CAMPAIGNS WITH „HIGH PEAK OF TRAFFIC“
Within the framework of a proportionate and reasonable use of the Software, the Customer undertakes to contact Qualifio’s online support in the event of the publication of a campaign with the potential to have a high participation rate (more than 900 simultaneous entries per minute) and this within a minimum of 5 working days before the publication of the campaign.
Consequently, the Customer acknowledges that Qualifio is not a „Second Screen“ platform to be used in combination with high-audience television or radio programmes.
6.3. COMPLIANCE WITH THE REGULATIONS IN FORCE
The Customer undertakes, in its use of the Software and Services, to comply with the laws and regulations in force and not to infringe the rights of third parties or public order. More specifically, it is the Customer’s responsibility to comply with the laws and regulations to which it is subject by reason of its professional activity, as well as the regulations applicable to commercial practices, more specifically advertising and promotional actions, including competitions. The Customer undertakes to make his personal business dealings with all declarations and authorisations, particularly administrative, fiscal and/or social security declarations and authorisations, and all payments of contributions, taxes or duties of any kind that he may be required to make in connection with the implementation of the Solution and the use of the Services. Qualifio’s liability may not be engaged in any way in this respect.
6.4. END-USER RELATIONSHIP AND CONTENT MANAGEMENT
The Customer is solely responsible for its relationship with the End Users, as well as for the Customer Content that it exchanges with the latter or any other third parties through the Software, and peripheral services. The Customer guarantees that it has all the rights and authorisations necessary for their distribution. The Customer undertakes to ensure that the Customer Content is lawful, does not undermine public order, morality or the rights of third parties, does not infringe any legislative or regulatory provisions and, more generally, is in no way liable to bring Qualifio’s civil or criminal liability into play. The Customer therefore undertakes not to distribute, in particular and without this list being exhaustive, any Content that is pornographic, obscene, indecent, shocking or unsuitable for a family audience, defamatory, insulting, violent, racist, xenophobic or revisionist, counterfeiting, contrary to regulations on the protection of personal data, detrimental to the image of a third party, false, misleading or proposing or promoting illegal, fraudulent or deceptive activities, – harmful to the computer systems of third parties (such as viruses, worms, Trojan horses, etc.).harmful to the computer systems of third parties (such as viruses, worms, Trojan horses, etc.), – and more generally liable to infringe the rights of third parties or be prejudicial to third parties in any way and in any form whatsoever.
Article 7. CUSTOMER WARRANTY
Customer indemnifies Qualifio against any and all complaints, claims, actions and/or claims whatsoever that Qualifio may suffer as a result of Customer’s breach of any of its obligations or warranties under these general terms and conditions. It undertakes to indemnify Qualifio for any prejudice it may suffer and to pay it all costs, charges and/or sentences it may have to bear as a result.
Article 8. CONFIDENTIALITY
The parties undertake to keep strictly confidential and not to disclose or communicate to third parties, by any means whatsoever, all information and/or documents transmitted by the other party or of which they may have knowledge or access in the context of the execution of this Contract. Consequently, the parties will take all useful and necessary measures to preserve the confidential nature of the information.
Confidential Information“ means any information communicated between the parties, files, documents, databases, in the course of the execution of this agreement, directly or indirectly, in tangible or intangible form, in any manner whatsoever, including but not limited to:
- any information, invention, design, process, formula, technology, scientific or technical method, improvement of technology, improvement of scientific or technical method;
- all trade secrets, product or service secrets, as well as lists of customers and suppliers;
- any information relating to brokers, files, reports and analyses of the financial status of the parties, studies, forms, management and business plans, as well as any information relating to ideas, inventions, drawings, logos and more generally to the know-how of the parties;
- any information relating to marketing data, marketing plans, or marketing strategies;
- any information obtained, directly or indirectly, and which is related to the elements specified above.
The Parties agree that Confidential Information shall not be new, unique, patentable, protectable, or constitute a trade secret in order to be designated as such and thus be applicable to this Agreement.
The parties also undertake to limit the communication of confidential information exclusively to the members of their staff who are called upon to take cognizance of it and to communicate it, on an exceptional basis, to their subcontractors or external consultants (accountants, lawyers, etc.). In this case, the parties undertake to take all steps (including the signing of a confidentiality agreement) to ensure that their employees and subcontractors treat such information in accordance with the confidentiality and use provisions of this agreement.
The obligation of confidentiality provided for in this Agreement shall persist throughout the term of the Agreement and for a period of 24 months after its expiry or termination, regardless of the cause.
At the end of the Contract, the Parties shall hand over to each other all copies, reproductions and all documents exchanged, on a tangible or intangible medium, and considered confidential by the Parties. The return of this information to the owner Party must be made upon simple written request, and in any event within 10 days of the expiry or termination of these GTC.
Article 9. USE OF THE CUSTOMER REFERENCE
In order to ensure the promotion of its services on its website and/or on any other commercial documentation, the customer expressly agrees that Qualifio can report on the collaboration with the customer, exclusively within the framework of the promotion of its products and services regardless of the media used.
Article 10. LIABILITY
The customer acknowledges and accepts that all obligations owed by Qualifio are exclusively of means and that it is only liable for its fraud and gross negligence.
Only direct damage may, where appropriate, be repaired, to the exclusion of indirect damage such as, in particular, without this list being exhaustive, loss of customers, operating loss, damage to reputation, increase in general expenses.
In any event, Qualifio’s liability shall be limited to the amount paid by Customer in performance of this Agreement.
Where the duration of the Contract exceeds one year, liability shall be limited to the amount paid in performance of the Contract during the twelve (12) months preceding the disputed event.
Article 11. INTERNET AND NEW TECHNOLOGIES
The Customer acknowledges the restrictions and risks associated with the use of the Internet or any other means by which the Qualifio Software is currently or will be made available in the future. The Customer also acknowledges the risks of storing and transmitting information by digital or electronic means.
The Customer accepts that Qualifio cannot be held liable for any damage caused by the use of the Qualifio Software (as well as any applications) or the Internet, as a result of the aforementioned risks.
The Customer further agrees that the electronic communications exchanged and the backups made by Qualifio may serve as proof.
The Customer is aware of and accepts that networks may have unequal transmission capacities and their own usage policies. No one can guarantee the proper functioning of the Internet as a whole and of incoming and outgoing networks. The Customer therefore waives the right to seek Qualifio’s liability in this respect.
Article 12. PROPERTY
12.1. OWNERSHIP OF DATA
The Customer is the sole owner of the Data transmitted to Qualifio or entered into the Qualifio Software both before and during the performance of the Agreement. Qualifio undertakes not to transfer them to a third party, except at the express request of the Customer.
Customer indemnifies Qualifio against any recourse by third parties, including data subjects within the meaning of the Regulation.
12.2. INTELLECTUAL PROPERTY
12.2.1. Ownership of the Contents
The Content uploaded by the Customer is his exclusive responsibility. Qualifio can in no way be held to any obligation regarding the Content uploaded by the Customer on the Qualifio Software. Qualifio refrains from using the Content and Data collected in the context of the Customer’s use of the Qualifio Software.
The Customer guarantees Qualifio that the rights that it has on the Content do not infringe the intellectual property rights of third parties.
12.2.2. Ownership of the Qualifio Software
The licences granted by the Agreement only authorise the Customer to use the functionalities of the Qualifio Software on a non-exclusive, internal and personal basis by the Customer, within the limits of the scope defined in the Quotation. Except for this right of use, they do not grant the Customer any property or other rights. Unless expressly waived, the agreed price therefore does not include any transfer of intellectual and/or industrial property rights for any reason whatsoever.
The concept, content, layout, structure, source codes, programming, images, pictures, photos, information, information elements, logos, designs, trademarks, models, slogans, software, animations, audiovisual works, texts, data, database, music and all other elements of the software and, in general, the content as well as the structure of the software belong, are and remain the exclusive property of Qualifio, and are protected by various intellectual and/or industrial property rights (including copyright, trademark law, the sui generis right of the database producer, etc.).), which the Customer acknowledges and accepts.
Qualifio warrants that the licenses granted by the Agreement, as well as the associated documentation or any services provided by Qualifio under the Agreement, do not infringe the intellectual property rights of third parties.
Qualifio also retains ownership of all standard or specific developments that it carries out and can freely reuse the ideas, concepts, methods, know-how or techniques relating to programming or Data Processing discovered or developed during the execution of any service whatsoever, even if the service was ordered and paid for by the Customer.
Finally, the Customer shall refrain from using the specifications of the granted applications to create or allow the creation of an application with the same destination.
12.2.3. Properties of the methods
The Parties respectively remain the owners of the tools and methods used or produced by them for the purposes of executing this Contract.
Article 13. OBLIGATIONS OF COLLABORATORS
Each party also undertakes to ensure that its employees, subcontractors and employees comply with the obligations arising from the Contract.
Article 14. SUBCONTRACTING
Without prejudice to Qualifio’s obligations as a processor of Customer as set out in Appendix 1 on the Protection of Personal Data, Qualifio, acting as controller, is free to subcontract the performance of its obligations under the agreement to any subcontractor of its choice, and this without Customer’s prior written consent.
In this respect, we will not disclose our Customers‘ personal data to third parties, except when necessary in the context of the provision of the services and their optimisation. In this context, your personal data may possibly be transmitted to payment partners, software suppliers, cloud partners, transport partners, external IT consultants, subcontractors responsible for the maintenance of our infrastructures, insurance companies, service providers and any other contractual partner that we may need to use within the framework of the provision of our services in our quality of data controller.
In this context, we will ensure that the third party concerned is bound by a strict obligation of confidentiality and by an obligation to use your personal data in accordance with the Regulation.
This will be the case, for example, when establishing an invoice, a satisfaction questionnaire for internal statistical purposes, or when Qualifio has to use additional designers or developers as necessary, etc.
Article 15. FORCE MAJEURE AND UNPREDICTABILITY
15.1. FORCE MAJEURE
Any element beyond the control of either party and against which it could not reasonably protect itself constitutes a case of force majeure and suspends the obligations arising from the Contract.
However, should this suspension continue beyond three (3) months, each of the parties reserves the right to terminate the present Contract without compensation after a period of one (1) month following the sending of a registered letter with acknowledgement of receipt notifying its decision.
The Parties admit among themselves, without this list being exhaustive, that the damage is due to force majeure or to the fault of a third party, and that it is caused by or has its origin in:
(1) the loss or destruction of all or part of Qualifio’s computer system or its database when any of these events cannot reasonably be directly attributable to Qualifio and it is not shown that Qualifio failed to take reasonable steps to prevent any of these events, 2) earthquakes, 3) fires, 4) floods, 5) epidemics, 6) acts of war or terrorism, 7) strikes, declared or not, 8) lockouts, 9) blockades, 10) insurrections and riots, 11) an interruption in the supply of energy (such as electricity), 12) a failure of the Internet network or the data storage system, 13) a failure of the telecommunications network, 14) a loss of connectivity to the Internet network or the telecommunications network on which Qualifio depends, 15) a fact or decision of a third party where such decision affects the proper performance of this agreement or 16) any other cause beyond the reasonable control of Qualifio, 17) a loss of the licence of the applications made available, provided that the loss is not attributable to the fault of Qualifio.
If, due to circumstances beyond Qualifio’s control, the performance of its obligations cannot be continued or is simply made more expensive or difficult, Qualifio and Customer undertakes to negotiate in good faith and loyally an adaptation of the contractual conditions within a reasonable period of time in order to restore the balance. If no agreement is reached within a reasonable period of time, each of the parties may invoke the termination of the contractual relationship between them without compensation or indemnity of any nature whatsoever.
Article 16. LOGS
Qualifio keeps the IP addresses, for a period not exceeding six (6) months, of the participants in the Campaigns in order to have the necessary traceability to ensure the security of its information system and its products and services. This Logbook allows Qualifio to analyse log flows in order to define possible incidents and alerts (fraudulent access, misuse, etc.) by establishing correlations between log data. This Logbook is not used for any other purpose than technical and organisational security.
Article 17. MISCELLANEOUS PROVISIONS
Except for the audit procedures relating to the protection of Data referred to in article 9 of Appendix 1 of these general terms and conditions, the Client agrees not to carry out or request a third party to carry out any type of audit whatsoever (security, penetration test, load test, etc.). Upon the Customer’s request by email at email@example.com, the Customer will obtain access to a copy of the „Global Security & Data Protection“ document and the latest penetration test report performed by Qualifio.
Qualifio certifies that it holds the following insurance policies:
- Cyber risk number BFCE000405 up to a maximum of 5,000,000 EUR
- Professional liability number BF33003217 up to a ceiling of EUR 2,000,000
Should a provision be deemed null or unenforceable, this shall not result in the nullity or unenforceability of the Contract, which shall remain in force for the rest, the null or unenforceable provision being replaced by another provision whose effects shall be as close as possible to those of this provision.
In this case, the parties undertake, at the first request of one of them, to replace the disputed clause with a clause having equivalent economic effects, whose validity or enforceability would no longer be called into question, and/or to complete the Contract in accordance with the spirit of the Contract.
17.4. ELECTION OF DOMICILE
Any communication between the parties shall be validly made to the address of the registered office of each company. Any modification of these addresses shall, in order to be valid, be communicated without delay to the other Party.
In the event of notification by registered letter, it will be deemed to have been made and will take effect on the date of deposit in the post office, the postmark being taken as proof in this respect.
The headings used in these terms and conditions are for reference and convenience only. They in no way affect the meaning or scope of the provisions they designate.
17.6. NO WAIVER
Inertia, negligence or delay by a party in exercising any right or remedy under these terms and conditions shall not be construed as a waiver of such right or remedy.
Article 18. DISPUTES, APPLICABLE LAW AND COMPETENT COURTS
The Contract is subject in its entirety to Belgian law.
If the parties do not manage to settle their dispute amicably, they agree to submit any dispute, controversy or claim relating to the Contract to the exclusive jurisdiction of the courts of Brabant Wallon (Belgium), even in the event of an appeal in warranty or multiple defendants.
APPENDIX 1. PERSONAL DATA
With regard to the Regulations and with regard to Data Processing, Qualifio will act as Processor and the Customer will act as Controller.
The Customer collects personal data and entrusts certain aspects of the processing thereof to Qualifio, which will then have access to and process the personal data provided by the Customer.
In accordance with the Regulation, Qualifio undertakes to Process the Data only, and only to the extent necessary, for the purposes of performing the services described in the Agreement. Except with the express, prior and written agreement of the Customer, Qualifio refrains from Processing the Data for other purposes not yet provided for in these GTC.
1.DURATION, NATURE AND PURPOSES, TYPES OF PERSONAL DATA, CATEGORIES OF DATA SUBJECTS
1.1. Categories of Data
The Data Processed by Qualifio on behalf of the Customer is based on the instructions of the Client, in particular through the setup of identification forms in the platform. This data may be of different categories, such as, but not limited to:
- Personal identification data (surname, first name, postal address, etc.);
- Electronic identification data (e-mail address, telephone number, IP address, terminal used, etc.);
- Data relating to personal characteristics;
- Leisure and interest data;
- Education, training and work data:
- Habits and lifestyle data.
1.2. Categories of data subjects
The Personal Data Processed by Qualifio on behalf of the Customer may concern different categories of persons, such as :
- of the Customer’s customers and prospects;
- of the Customer’s employees;
- of the Customer’s suppliers.
1.3. Duration of Treatment
During the provision of services relating to the Processing of these Data, the duration of the Data’s retention period is managed directly by the Customer through the „GDPR Toolbox“ available within the Software. The Data retention period that may be set by the Customer is however limited to 24 months. This period of 24 months is moreover set by default in the “GDPR Toolbox“.
At the end of the 24-month period established by default or the period set by the Customer, the Customer will no longer be able to access his Data.
It is therefore the Customer’s responsibility to adapt the duration according to its Data retention policy.
In any event, Qualifio undertakes to definitively delete these Data from its Manager no later than two (2) months after the end of the data retention period indicated in the Software.
If required by European Union or Member State law, Qualifio may keep personal data for a period longer than that mentioned above.
1.4. Nature and Purpose of the Treatment
Personal Data is processed for the provision of the services as described in the Quotation.
Processing consists of any Data Processing activity carried out according to the instructions of the Customer and necessary for the provision of services to the Customer, with the exclusion of unlawful processing.
2. OBLIGATIONS OF QUALIFIO
Within the framework of its missions according to the present GTC, Qualifio undertakes to:
- To process personal data only for the purpose(s) that is/are the subject of the subprocessing.
- To comply with the Regulations, and in particular to process personal data exclusively on the basis of documented instructions from the Customer.
- Refrain from acting in a manner that would constitute or result in a violation of the Regulations by Customer and immediately inform Customer when Qualifio believes that an instruction is being taken in violation of the Regulations. If Qualifio is required to transfer data to a third country or to an international organisation under the law of the European Union or the law of the Member State to which it is subject, it must inform Customer of this legal obligation before processing, unless the relevant law prohibits such information for important reasons of public interest.
- To guarantee the confidentiality of the personal data it receives from the Customer. Qualifio can derogate from this obligation of confidentiality when a legal prescription or a judicial injunction obliges it to communicate the data or when the transfer of data takes place on the instructions of the Customer. Any legally binding disclosure of personal data to third parties must be notified in advance by Qualifio to Customer. Confidentiality will remain in place after the transfer or expiry of this agreement.
- Qualifio also ensures that the persons authorised to process personal data under these GTC: (i) undertake to respect confidentiality or are subject to an appropriate legal obligation of confidentiality; and (ii) receive the necessary information regarding the protection of personal data.
- Satisfy its obligation to help the Customer, as far as possible, to follow up on requests relating to the rights of the data subjects.
- If necessary, keep a record of the processing of activities carried out on behalf of the Customer. Qualifio makes the register available to the Supervisory Authority on request.
If Qualifio ascertains that Customer’s instructions are contrary to the Regulations or national data protection provisions, it will immediately inform Customer and may refuse to comply with such instructions until they comply with the Regulations.
2.2. Customer Assistance
Qualifio undertakes to assist the Customer, at its request and as far as possible, by appropriate technical and organisational measures, to fulfil its obligation to follow up on the requests that the End Users submit to the Customer in order to exercise their rights provided for in the Regulation.
When supporting the Customer via the online assistance (Helpdesk) regarding the processing of personal data (Problem with the statistics module, questions regarding the definition of winners, etc.) – Qualifio must identify the user who made the request for assistance. The email of the user must have the customer’s domain name and must have export rights in the Qualifio application defined by the administrators of his account. If applicable, Qualifio is authorised to process the Customer’s support request and, if necessary, performs a data transfer via the secure procedures (automatic or manual) set up by Qualifio.
2.3. Taking technical and organisational measures
Qualifio takes technical and organisational measures in order to guarantee a level of security adapted to the risk, taking into account the state of knowledge, the costs of implementation and the nature, scope, context and purposes of the Processing as well as the risks, the degree of probability and seriousness of which varies, to the rights and freedoms of natural persons.
These measures will be available in the „GDPR Toolbox“.
Qualifio undertakes to ensure a complete separation between its own Data, those of its other customers and those of the Customer itself.
2.4. Compliance with articles 32 to 36 of the Regulation
Taking into account the nature of the Processing and the information at its disposal, Qualifio undertakes, at the request of the Customer, to help the latter to guarantee the respect of the obligations provided for in articles 32 to 36 of the Regulation. This assistance may be invoiced by Qualifio on the basis of the current rates available on request, if this assistance requires more than two (2) hours of services within Qualifio’s teams.
2.5. Keeping a Treatment Register
Qualifio undertakes to keep a register of Processing activities, in accordance with article 30.2 of the Regulation, of all categories of Processing activities carried out on behalf of Customer.
2.6. Protection by design and by default
Finally, Qualifio undertakes to consider, with regard to its tools, products, applications or services, the principles of Data protection from the design stage and Data protection by default.
2.7. Exercise of individual rights
Qualifio undertakes to help, as far as possible, the Customer to fulfil its obligation to comply with the requests made to it by the data subjects with a view to exercising their rights under Applicable Laws, including the GDPR.
When the data subjects make requests to Qualifio to exercise their rights, Qualifio must send these requests upon receipt by e-mail to firstname.lastname@example.org.
2.8. Cooperation with the competent supervisory authority
Qualifio undertakes to cooperate with the competent Control Authority, at the request of the latter or at the request of the controller, in the performance of its tasks.
In addition, Qualifio makes available to Customer the documentation necessary to demonstrate compliance with all its obligations and to enable audits, including inspections, to be carried out by Customer or another auditor commissioned by it, and to contribute to such audits.
2.9. Disclosure to third parties
Qualifio does not communicate to third parties personal data that has been made available to it by a third party unless: (i) it is a subprocessor approved by Customer; or (ii) such communication is required by or pursuant to law.
Any legally required disclosure of personal data to third parties must first be brought to the attention of the data controller.
2.10. Data back-up
Qualifio undertakes not to make any copy of the data made available to it, except for the purpose of a back-up, if this proves to be indispensable during the execution of the mission.
3. OBLIGATIONS OF THE CUSTOMER
3.1. Documentation of instructions
The Customer undertakes to document in writing any instructions concerning Data Processing. The Customer shall remain solely responsible for the proper communication of these instructions to Qualifio. Qualifio can never be held liable for non-compliance with the Customer’s instructions if these have not been transmitted to Qualifio in writing, in a manner that is readable and comprehensible by the Customer.
By default, the Customer’s instructions are those indicated in these GTC or in the special conditions
3.2. Prohibition of Processing of Sensitive Personal Data
The Customer shall refrain, in the context of the use of the Qualifio Software, from Processing Sensitive Personal Data, namely any Processing of Personal Data that reveals racial or ethnic origin, political opinions, religious or philosophical beliefs or trade union membership, as well as the Processing of Genetic Data, Biometric Data for the purpose of uniquely identifying a natural person, Data concerning health or Data concerning the sexual life or sexual orientation of a natural person.
3.3. Prohibition of Processing of Payment Data
The Customer shall refrain, in the context of the use of the Qualifio Software, from processing Payment Data, namely credit cards number, CVV number, IBAN number, bank account number, or any financial account information.
3.4. Information and legal basis for Processing
It is the Customer’s responsibility to ensure the lawfulness of each Processing, to inform the data subjects in a concise, transparent, comprehensible and easily accessible manner in clear and simple terms.
4.1. By Qualifio
Qualifio may use another subprocessor (hereinafter, the “Subprocessor„) to carry out specific Processing activities. In this case, it shall inform Customer in advance, by means of a message in the Software, of any planned change concerning the addition or replacement of other Subprocessors. The Customer has a maximum period of thirty (30) days from the date of receipt of this information to present its objections in writing, it being understood that these objections must be of a reasonable nature. Such subprocessing may only be carried out if the Customer has not raised any objections within the agreed period.
If Customer does expressly object to the change of Subprocessor within the aforementioned conditions and deadline and if no solution could be found, Customer may decide to terminate the agreement with Qualifio by giving thirty (30) working days‘ written notice. In this case, Customer shall pay Qualifio for all services already performed on its behalf until the effective date of termination.
Qualifio will ensure that it imposes the same Data protection obligations on its Subprocessors.
Qualifio will ensure that it concludes a written contract with the Subprocessors containing the same obligations as those set for Qualifio, in particular:
- Require the subsequent subprocessor to process personal data only in accordance with the written instructions of Qualifio or Customer;
- Provide for the Customer’s option to audit this subprocessor in order to ensure its compliance with the obligations under this contract.
Qualifio ensures that the subprocessor provides the same sufficient guarantees as regards the implementation of appropriate technical and organisational measures so that the data processing meets the requirements of the Regulation.
Qualifio will provide Customer with a list of subprocessor on Qualifio’s site available at any time in the GDPR toolbox of the Software. In the event of changes to the list, updates will be published directly on Qualifio’s website and integrated into the list.
4.2. By the Customer
As part of their contractual relationship, Qualifio may be led to recommend subprocessors to Customer, in particular to ensure the transfer of Data between Qualifio and Customer’s technical environments.
For its part, Customer shall ensure that it enters into a subprocessing agreement with these subprocessors, even if these subprocessors have been recommended by Qualifio.
5. DATA BREACH
Qualifio undertakes to take the appropriate technical and organisational measures in order to secure personal data and their processing and to prevent the data from being made accessible to an unauthorised person and from being used for improper purposes. Qualifio ensures the protection of personal data taking into account the state of knowledge and the costs of implementing these technical and organisational measures.
These security measures may include:
- pseudonymisation and encryption/encryption of personal data;
- the means to ensure the continued confidentiality, integrity, availability and resilience of treatment systems and services on a permanent basis;
- the means to temporarily restore the availability and access to personal data within an appropriate timeframe in the event of a technical or physical incident;
- a procedure for testing, analysing and evaluating, at specified intervals, the effectiveness of technical and organisational measures to ensure the safety of the treatment).
Qualifio takes the necessary technical and organisational measures to ensure that only authorised persons within Qualifio have access to personal data. Qualifio undertakes to respect the confidentiality of the data and imposes this obligation on all its staff members.
Qualifio undertakes to inform members of staff who have access to and process personal data on the importance of respecting the provisions of the Regulation.
Qualifio notifies the Customer of any data breach as soon as possible and in any case as soon as Qualifio confirms and verifies the breach in question, the types of data and Customers impacted. Qualifio notifies the Client’s contact person by e-mail. This notification shall be accompanied by any useful documentation to enable the Customer, if necessary, to notify the competent supervisory authority and, where applicable, the data subjects, within 72 hours of the Customer becoming aware of the violation.
6. DATA PROTECTION OFFICER
In accordance with article 37 of the Regulations, Qualifio has appointed a Data Protection Officer, who can be contacted at the following email address: email@example.com.
6.2. The Customer
In the context of the Qualifio Software, it is the Customer’s responsibility to appoint a Data Protection Officer and to inform Qualifio of his identity via the GDPR Toolbox, if applicable.
Failing this, the Customer’s contact person will be registered as a Data Protection Officer.
7. RESPONSIBILITY FOR DATA PROCESSING
Subject to the provisions of Article 12, the Parties shall be responsible, each for its own part, for the proper observance of the Regulation; contractual obligations binding the Parties may never prevent the proper performance of their respective legal obligations.
As the Controller, the Customer remains responsible for the management, collection and processing of personal data and for the instructions given to Qualifio.
With respect to third parties, Qualifio’s liability can only be invoked in the event of material or moral damage due to a breach of the Regulations and provided that Qualifio has not complied with the obligations provided for in the Regulations that are specifically incumbent on the processor or if Qualifio has acted outside or contrary to the lawful instructions of Customer and unless Qualifio proves that the fact that caused the damage is not attributable to it in any way.
Qualifio cannot invoke a breach by a Subprocessor of its obligations under this contract to escape its own responsibilities. In other words, Qualifio is liable to Customer for the improper execution of the contractual obligations of its own processor.
8. CUSTOMER’S PERSONNEL DATA
During the execution of the Contract, Qualifio and the Customer will be led to exchange personal Data such as in particular Identification Data and the coordinates of their respective contact persons.
The legal basis for this Processing is the proper execution of the Contract or the execution of pre-contractual measures.
Moreover, in strict compliance with the Regulation, the Personal Data of the Customer’s personnel may be processed by Qualifio:
- for non-electronic direct marketing purposes (commercial and promotional actions, personalised advertising, etc.), in order to improve the quality of Qualifio’s services and products and to improve the Customer’s knowledge of Qualifio’s software, to inform the Customer about its activities, products and services and to send it commercial offers, based on Qualifio’s legitimate interest;
- for the purposes of electronic direct marketing for similar services and products offered by Qualifio, in order to improve the quality of Qualifio’s services and products and to improve the Customer’s knowledge of Qualifio’s software, to inform the Customer about its activities, products and services and to send it commercial offers, based on Qualifio’s legitimate interest; and
- for the purposes of electronic direct marketing for non-analogous offers and services offered by Qualifio, when the Customer’s personnel individually give us their consent to do so.
However, the Customer’s staff retains the right to oppose at any time the use of its data for direct marketing purposes, whether electronic or not, either via an unsubscription link appearing in the communications sent by Qualifio, or via a simple request to the address firstname.lastname@example.org.
The Data will be kept for the duration of the Contract for the proper performance of the contractual relationship or the execution of pre-contractual measures, extended by the legal retention period or the statute of limitations period in order to be able to deal with any claims or possible recourse that may arise after the end of the contractual relationship or after the termination of the contractual relationship.
In any case, the data subjects may exercise their rights of access, rectification, deletion, opposition, limitation and portability at the following address: email@example.com.
In order to be able to help the data subjects and when the context justifies it, Qualifio must take all reasonable steps to verify their identity. To this end, where there is reasonable doubt as to the identity of the data subjects, Qualifio may request that the identity be justified by providing additional information, including, if necessary, by means of a photocopy of the front of the identity card. If the data subjects do not provide such additional information enabling them to be identified, Qualifio is not obliged to comply with requests to exercise the right if Qualifio is unable to identify the data subject.
Moreover, in the event of a violation of this right to the protection of Personal Data, they will be able to file a complaint to the Data Protection Authority.
In the event that Customer requires a data protection audit procedure under the Agreement, Customer shall (i) notify Qualifio at least five (5) business days prior to such audit, (ii) ensure that such procedure does not unreasonably interfere with Qualifio’s business. Any audit procedure will be carried out exclusively by Customer.
Any audit procedure that would require the involvement of Qualifio’s technical resources will be invoiced according to the current rate available on request.
Customer undertakes to provide Qualifio with a copy of the audit report and to allow Qualifio to respond to it, if necessary.