Terms of Service
WebPerf IO is operated by Basilic S.A.S. The Basilic company (hereafter « WebPerf IO ») designs and creates a range of Software programs aimed at companies that wish to industrialise real user monitoring. It offers its clients (hereafter « Client ») services (hereafter « services ») that include:
- providing a software program in SaaS (Software as a Service) mode through a service contract. Software as a Service (SaaS) technology consists in providing services or computer programs via the Web that are « purchased » through a subscription system.
- training in the use of the program
- the collect, the storage and the analysis of real user monitoring data related to the program.
The aim of these General Conditions, for the duration of their validity, is to define the contractual framework that governs all of the services that the Client orders from WebPerf IO. The Specific Conditions as well as the Service Contract can be added to these General Conditions.
These General Conditions become applicable as soon as the Client subscribes to one of the services offered by WebPerf IO. They may also include Specific Conditions. Except if indicated to the contrary in a specific sales offer from WebPerf IO, the General Conditions listed here are valid for as long as the account is valid. WebPerf IO reserves the right to immediately suspend or cancel a Client's account should the latter not comply with WebPerf IO's General Conditions.
4. Using WebPerf IO
WebPerf IO undertakes to ensure the continuity of the service and guarantees the correct operation of the following:
- The back-office, only accessible via the Internet at https://app.webperf.io/
- The distribution of the script integrated in the Client website;
- The collect, the storage and the analysis of collected data.
5. Interruption of service
In the event of an interruption of more than 24 hours of one of the three services listed in the previous Article as of the time of notification by the Client to WebPerf IO, each subsequent 24-hour period shall translate into a reimbursement of 10% of the monthly subscription fee of the next month, accumulative per additional day of interruption, to a maximum of 100% should the interruption continue (for example, a continuous service interruption of 72 hours means a 20% discount on the next monthly subscription amount; similarly, two interruptions of 48 hours would also mean a discount of 20%).
6. Intellectual Property
6.1. Software programs
WebPerf IO owns the intellectual property rights on the software programs and owns the rights pertaining to their distribution, as well as to any related documentation. The right of use of the license entails no transfer of intellectual property to the benefit of the client. As a result, the client shall refrain from any activities or acts that may directly or indirectly infringe on WebPerf IO's copyright on the software program or on any one of the other intellectual property prerogatives likely to be associated with the software, such as those relating to industrial property.
6.2 Third-party software programs
WebPerf IO uses so-called « open-source » components in the development of its software. WebPerf IO declares ownership of the rights of use of the third-party software programs and owns the rights necessary for their distribution, within the limits of the rights allocated to them in terms of their license of use, the terms of which the Client acknowledges that it has read and accepted.
The Client shall refrain from any use that is not expressly authorised by the licenses, which would constitute a piracy offence. The list of the third-party software programs and the reference of the corresponding licenses of use are available upon use of the Software.
6.3 Studies and documents
WebPerf IO retains the full and complete ownership of the studies and the documents developed during the execution of the contract.
The following elements are considered confidential for each of the parties and the members of their staff:
all information, documents and knowledge, regardless of the medium and format used for their transmission,;
- 1. transmitted by the other party ;
- 2. with a direct or indirect relationship to the subject of this contract, the nature and the extent of the services concerned.
Each of the parties agrees that the information it receives for the execution of the contract on behalf of the other party:
- shall be protected and kept strictly confidential and shall be handled with the same level of care and protection that it accords its own confidential information of equivalent importance;
- shall be circulated internally only to the members of its staff that require this information for the execution of this contract, and that every care shall be taken to ensure that this information can be used by these persons in this context alone;
- shall not be divulged, or be likely to be divulged, directly or indirectly, in whatever context and in whatever format;
- shall not be used as a whole or in part for any reason whatsoever other than the purposes of the execution of this contract.
Each of the parties shall answer for the adherence to the obligations stipulated above by the members of its staff to whom any of the above-mentioned information will have been divulged.
In the event that, upon dispensation of the above, one of the parties is authorised by the other party to divulge this confidential information to a third party, this party shall also be responsible for the third party's adherence to the obligations of confidentiality stipulated in this contract. As a result, said party would be responsible for any breach committed by the persons for which it is responsible.
This article does not apply to information:
- that was in the public domain at the time of its divulgence or came into the public domain without there being any breach in terms of this contract;
- that the party concerned could prove possession of before the date of this contract;
- that results from internal developments by the party concerned without resorting to any confidential information as described in this article;
- that is sent to one of the parties or to its partners or employees by third parties to these stipulations without there having been any breach of this article;
- that is divulged with the prior written approval of the other party.
The terms of this article remain applicable for a duration of two (2) years after the expiry of the contract for whatever reason.
8. Financial conditions
In return for the products and services provided by WebPerf IO, the client shall pay the amount indicated at the time of the on-line subscription or in the Service Contract. The prices are exclusive of tax and the applicable fees and taxes will be charged in addition and will be those in effect on the invoicing date.
The implementation of the services by WebPerf IO is conditional to the payment of the amounts due by the client at the time of the order, as indicated during the on-line subscription or in the Specific Conditions or in the Service Contract.
8.2. Payment schedule
Except if stipulated to the contrary in the Specific Conditions or in the Service Contract, the client will be invoiced for the amounts according to the following schedule:
- For the use of the software in SaaS mode: each month, in arrears.
- For the traffic tested above that included in the Package selected by the Client, the additional traffic tested will be invoiced at the end of the period of validity of the Package, the day before the anniversary date.
The invoices are payable thirty (30) days from receipt and, in the event of an unaccepted bill of exchange, upon expiry of the latter.
8.3 Methods of payment
The preferred method of payment between the Parties is automatic credit card payments, via the automated payment interface, accessible in the back-office.
Should a debit order not be possible, and with the approval of WebPerf IO, the Client may pay the amounts via bank transfer. The Client undertakes to facilitate any communication with its accounting and/or payment departments in order to ensure that the terms of payment stipulated in these General Conditions are adhered to.
Any costs resulting from a returned bill of exchange or an unpaid debit order as well as all the recovery costs incurred by WebPerf IO to obtain payment of the debt will be charged to the Client.
8.4 Price reviews
Any dues resulting in a periodic payment are revised annually, on the 1st of April of each year, according to the following formula:
P(t) = P(t-1)x[(S(t)/S(t-1)], where:
- P(t-1) is the basic price or the price corresponding to the last revision;
- P(t) is the price after revision;
- S(t-1) is the Syntec index of the month of January of the year in which the Service Contract was signed;
- S(t) is, for the subsequent periods, the Syntec index of the month of January of the year in question.
In the event of the disappearance of the revision index and the failure to agree on a new index, express authority is awarded to the presiding judge of the commercial court of Paris to define an index that will be used in the revision formula.
This index must be determined in such a manner that it is as close as possible to the missing index and respects the spirit that the parties aimed to define when this revision clause was drafted.
9. Late penalties
Failure to pay the amounts due will result in, notwithstanding the rightful implementation of the « Cancellation » clause, simply due to the expiry of the term:
- the demand that all outstanding amounts, regardless of the intended payment method, be paid immediately;
- the invoicing of a late penalty corresponding to the amounts due by the Client, increased by a rate equal to fifteen (15) percentage points. Should the interest rate applied by the European Central Bank (ECB) to its refinancing operation be above 5%, WebPerf IO shall increase the rate of the penalties applied in order to comply with the regulation, namely, the application of a penalty equal to three times the interest rate applied by the ECB to its refinancing operation.
- the penalties shall be due the day after the settlement date stipulated on the invoice.
In the event of the use of a financing organisation or a request to invoice a third party appointed by the Client, the Client shall remain jointly and severally liable for any amount not paid by the latter.
10. Suspension of services
WebPerf IO reserves the right to suspend the execution of all the services stipulated in the Service Contract or an order, in the event of late payment by the Client after notice by registered letter with acknowledgement of receipt still fruitless after ten (10) days, until settlement in full of the invoice in question, without this suspension being considered a cancellation, and without prejudice of WebPerf IO's right to pursue the recovery of the amounts due and any damages and interest payable.
For the monthly fees of use of the software in SaaS mode, each month started is due in full.
Generally speaking, the execution of any order by WebPerf IO is subject to the absence of any debt that WebPerf IO has not recovered from the Client, regardless of the nature of the debt.
11.1 Cancellation for default
Should any of the parties be in serious default in terms of its essential contractual obligations, not addressed within thirty (30) days from notice via registered letter with acknowledgement of receipt of the default in question, the other party will rightfully be able to:
- either cancel any Specific Conditions affected by the default in question. In this case, the cancellation of the said specific conditions will not result in the cancellation of the General Conditions and other specific service conditions , which will remain applicable ;
- or cancel all the General and Specific Conditions.
11.2 Cancellation of the Specific Support and Services Conditions
The Specific Support and Services Conditions can be cancelled under the conditions defined in these General Conditions.
11.3 Other cases of cancellation
Depending on the case, and provided that notice of fifteen (15) days has been given, WebPerf IO reserves the option of unilaterally cancelling this Service Contract, under the following conditions:
- initiation of a legal receivership or liquidation procedure against the Client, except if decided otherwise by the legal administrator,
- changes that affect the software and material environment existing on the day of the order and not communicated by the Client to WebPerf IO.
12. General cooperation
The parties agree to cooperate closely in the context of their relationship. The parties agree that this cooperation is vital to the correct execution of these conditions.
The Client undertakes to actively cooperate with WebPerf IO in the context of the execution of the services and undertakes especially to:
- appoint a contact manager, with sufficient notice in terms of the contracted services; this obligation extends to the Specific Support and Services Conditions;
- spontaneously, and at the first request from WebPerf IO, provide the information and the documents required for the execution of the services by WebPerf IO;
- report the difficulties encountered with the product - bugs, various crashes - so that the Service Provider can determine and make the various technical developments required by the product in an aim to constantly improve the service.
The parties expressly agree that WebPerf IO is bound, for the execution of all the services listed in these General Conditions, by an obligation of means.
It is agreed that the Client is solely responsible for operations to verify the correct operation of the system in its entirety.
WebPerf IO draws the Client's attention to the fact that real user monitoring is a complex technical subject, that WebPerf IO's solution is a powerful one and therefore likely to significantly affect the target websites. WebPerf IO therefore strongly encourages the Client to regularly check that the site is functioning correctly and to put in place an effective quality assurance (QA) policy.
WebPerf IO cannot be held responsible:
- if the client has not complied with all its obligations as stipulated in these documents and in the Specific Conditions;
- in the event of error or negligence by the client, one of its employees or a third party appointed by the client;
- in the event of non-compliance with WebPerf IO's recommendations by the client, its employees and the above-mentioned third party.
The parties agree that WebPerf IO can only be held responsible for consequences relating to direct damage, to the exclusion of indirect damages such as loss of profit, turnover, margins, revenue, orders, clients, operations, marketing actions, or tainted brand image, without this list being exhaustive.
The parties expressly agree that should WebPerf IO be held responsible under the conditions of this article, the latter is limited to the amounts actually paid by the client in terms of the default at the source of the alleged damage. The stipulations of this contract distribute the risk between the parties. The prices agreed reflect this distribution of risk and the resulting limitation of responsibility. The aforementioned limitation does not apply in the event of corporal damage or death.
14. Solicitation and head-hunting of personnel
The Client shall under no circumstances whatsoever solicit for the purposes of employment or directly or indirectly employ any of the Service Provider's employees, whether paid employee or not, even if the Client is approached by the employee.
This restriction applies for the entire duration of the contract and for twenty-four (24) months after its termination, regardless of the cause.
Should the Client be in breach of this restriction, the latter will be required to immediately pay the Service Provider, as a penalty, a fixed fee equal to twenty-four (24) times (x) the average of the six (6) last gross monthly salary payments of the person solicited or employed, as well as any fees incurred by the recruitment of a replacement.
15. Data of a personal nature
Each of the parties shall deal with the formalities and responsibilities required of it by the regulation relating to the protection of personal data, specifically law nr. 78-17 dated 06 January 1978 relating to IT, files and freedom (hereafter referred to as the French data protection act), and especially in terms of the cross-border flow of information outside the European Union.
16. Contractual instruction
With the exception of any action that could be taken by WebPerf IO against the Client in the event of default of payment of amounts due in terms of the execution of the services stipulated in the present conditions, and unless otherwise stipulated by public order, the parties mutually agree to refrain from taking any legal action against the other more than one (1) year after the appearance of the cause of such actions.
17. Act of God
An Act of God suspends the obligations of the parties. The parties expressly agree that the cases considered to constitute an Act of God are those that are usually contained in case law. In addition, the parties agree that an Act of God is defined as any event outside the control of WebPerf IO and against which it could not reasonably take action and whose consequences it would not have been able to mitigate without incurring expenses that are out of proportion with the remuneration it receives.
WebPerf IO declares that it has subscribed to an insurance policy with a reputably solvent company. Its policy covers professional civil liability for all bodily, material and immaterial damage caused to the Client or to a third party, in the context of the execution of these services.
WebPerf IO is expressly authorised to mention the Client and the work completed in the context of this contract as a commercial reference in communication with third parties.
20. Scope of obligations
The contract, which comprises these General Conditions, the sales offer, the signed Services contract, the specific conditions corresponding to the related services as well as the quality charters in effect, expresses the entire scope of the obligations of the parties.
No other document, whether technical, commercial or related to advertising, and no correspondence preceding the signing of the contract will be able to create any obligations on the side of either party.
In order to allow for the development of its services or of its administrative and commercial management, WebPerf IO shall be able to modify certain clauses and conditions of the contractual documents stipulated in the current Service Contract and related to services that are in the process of being provided. The Client shall be informed of these changes at least two (2) months before their implementation. The Client shall have the option, during this notice period, to refuse the application of these changes in a registered letter with acknowledgement of receipt, received by WebPerf IO at the latest by the end of the two (2) month notice period stipulated above. Should this occur, the services shall continue until the expiry stated in the Service Contract, without renewal, in dispensation of the specific conditions that govern the duration of the various services offered by WebPerf IO.
22. Agreement of proof
All the electronic correspondence exchanges between the parties shall be accepted as proof and will be enforceable against the parties.
The computerised registers stored in WebPerf IO's computer systems shall be stored under security conditions and shall be considered as proof of communication between the parties.
The archiving and the storage of the access to services are done on a reliable and sustainable medium that can be produced as proof.
The Contract is subject to French law. In the event of a dispute between the parties relating to the compilation, the interpretation and/or the execution of this Contract, authority is awarded to the Commercial Court of PARIS, notwithstanding the presence of several defendants or the introduction of third parties, urgent or protective measures, or summary or ex parte proceedings.
In the event of a dispute between the parties, authority is awarded to the Commercial Court of PARIS, notwithstanding the presence of several defendants or the introduction of third parties, urgent or protective measures, or summary or ex parte proceedings.