Allgemeine Geschäftsbedingungen (auf Englisch)

Legal notice
Editor: GoyaCom SASU
Paid-in capital: 500 000 €
Director: Sylvain Courcoux
4 rue de l'artisanat
Reichstett 67116 - France
RCS de Strasbourg 823 033 345
EU VAT number FR 64823033345
CNIL Filing n°2039410
Code APE 7112B
Hosting provider: Ikoula SAS
175-177 rue d'Aguesseau
Boulogne Billancourt 92100 - France
www.ikoula.com
Preamble
The following Terms of Service (hereafter the "TOS") govern the relationship between the company GoyaCom (hereafter the "Service Provider"), headquartered at 4 rue de l'artisanat in Reichstett 67116 in France, registered at the Strasbourg trade registry under reference RCS 823 033 345, and the user (hereafter the "User"), an individual or a legal entity of civil or public law, looking to subscribe to the services (hereafter the "Services") offered on the site www.goyaphone.eu, hereafter (the "Site").
Article 1 – General Provisions
The following TOS apply to the all the Services offered by the Service Provider, whether they are rendered for a fee or for free, to the professional User. The TOS are available on the Site. The Service Provider is entitled to amend the TOS, in which case the applicable TOS will be those in effect the day the Services are ordered. They apply exclusively, regardless of any other clauses that may appear on the User's documents, in particular any general terms and conditions of purchase. In order to be bound by an agreement that deviates from these TOS, the Service Provider must have expressly agreed to it in writing.
The validation of an order by its confirmation is equivalent to the User's full and unreserved acceptance of the TOS in effect on the day of the order, which are stored and reproduced by the Service Provider, in accordance with Article 1369-4 of the Civil Code. Any order will only be taken into consideration after acceptance of payment. The Service Provider also reserves the right to cancel or refuse any order from a User with whom there is a dispute over payment of a previous order for Services.
The nullity of a clause does not nullify of the entire TOS, which will remain in effect between the parties. In the event of a translation of these TOS and in the event of contradiction or dispute as to the meaning of a term or provision, the language of reference shall be French.
Article 2 – Description of Services
The Service Provider provides a CRM software designed for telephone prospecting. The Services are accessible online via the internet on the Site accessible at www.goyaphone.eu. The Services are exclusively and specifically designed for professionals as defined in the introductory provisions of the Consumer Code.
The Services can be used free of charge or for a fee. The free version of the Services allows Users to evaluate the Services by providing them with a demo version of the interface as well as video tutorials to learn how the Services work.
The Paid Service allows the User to prospect, and in particular to make prospecting phone calls. The rates of the Services are available on the Rates page of the Site. The user-interface of the Site is available in French, English and German. The Service Provider reserves the right to make changes to the Site. Unless stated otherwise, any new feature that improves or enhances the Site will be subject to these Terms and Conditions of Sale.
Article 3 – User Registration
Use of the Services requires registration by the User, an individual or legal entity acting as a professional. Use of Services is subject to a free registration that implies full acceptance of the TOS. In order to use the Services, the User must complete a registration form and provide certain information. To this effect, the User commits to providing correct, complete and truthful information, and is informed that the Service Provider reserves the right to sanction any false statement by cancelling the registration. To safeguard against attempts of fraud the Service Provider reserves the right to ask the User to prove his identity (government-issued identity, business license) and his business activities.
During the registration, the User is solely responsible for the choice of his username and his password, to which the Service Provider himself has no access. The User commits not to communicate his login credentials to a third-party and is informed that any use of the login credentials is carried out under the full responsibility of the User. The Service Provider shall not be held responsible in case he is not informed of a change of situation of the User, or in case of erroneous information relating to him. Use of an account is strictly personal and an individual cannot open multiple accounts on the Site.
The Service Provider reserves the right to file suit and demand settlement against any person who attempted to cheat, mislead or use the Service to a fraudulent end, or generate a benefit by unfair or disloyal means.
Article 4 – Use of Services
The Services are normally available to Users twenty-four (24) hours a day, seven (7) days a week. All software and hardware required for the use or operation of the Services, including internet access or connection fees, are the sole responsibility of the User. He is solely responsible for the proper operation of his computer equipment and internet access. The Service Provider cannot be held liable in the following cases, including in the event of damage suffered by third parties:
The User declares acceptance of the characteristics and limitations of the Internet network and, in particular, acknowledges:
Use of the Services requires a web browser and a telephone headset with microphone. The Service Provider provides only the Services described in Article 2 hereof, as well as a mention of the technical prerequisites enabling the User to determine whether he can benefit from all of the Services and, in particular, the possibility of making telephone calls using the WebRTC protocol and sending emails using the MailTo protocol.
All paid calling plans are unlimited. Unlimited calling plans enable the User to call certain geographical areas defined by their international telephone prefix, without limit to the number of calls, throughout the duration of the plan, expressed in days. They do not, however, include calls to toll telephone numbers, or to unauthorized telephone prefix numbers. The list of authorized telephone prefix numbers is displayed on the Site. Extensions to geographical areas with other telephone prefixes may be agreed upon. When a calling plan has expired, the User retains free and unrestricted access to the Site. The Service Provider offers the User 50 (fifty) free and non-cumulative calls every 30 (thirty) days.
Article 5 – Duties and Responsibilities of the User
The User declares being a professional. The User is solely responsible of the use of the Services and commits to using the Services according to their intended purposes, namely, telephone prospecting. In this regard, the User commits to respecting the laws in effect and related to telephone prospecting, of both the countries from which the calls are initiated, and the countries to which the calls are placed. The User commits to respecting the regulations in effect and related to the Services and in particular not to prospect an individual enrolled on a do-not-call list. The User shall refrain from any other use of the Services, or a use of the Service that is unfair of that does not abide by the best practices of his profession. The User shall refrain from reselling and sharing the Services offered by the Service Provider to another business, as well as refrain from reselling to third-parties any data extracted from the Services.
In addition, the User remains solely responsible for damages and harm, direct or indirect, material or immaterial, if they are caused or initiated by the use of the Site by himself or by any person authorized by him to use this application, whether such use is made in a fraudulent or non-fraudulent manner.
The User therefore expressly waives any claim or legal action relating to damages and tort, on the basis of the contractual liability of the Service Provider in his capacity as publisher of this Site, or on any other basis. The User agrees to hold the Service Provider harmless against any action or settlement related to his use of the Services, whether voluntarily or through negligence. In particular, the User agrees to voluntarily intervene in any legal proceeding brought against the Service Provider. The Service Provider shall not be liable for the User's behavior.
The User is informed that any use of the Services contrary to these TOS may result in the suspension of the Services.
Article 6 – Duties and Responsibilities of the Service Provider
The Service Provider commits to provide all the care and diligence necessary to the quality of the Services. The Service Provider does not guarantee that the Services will be compatible with a particular hardware or configuration other than those deemed compatible in the compatibility test. In any case, the Service Provider shall not be held responsible, neither toward a third-party of the User, for any consequence of the use of Services.
Consequently, the Service Provider shall not be held civilly responsible of any duty, expressed or implied, towards the User or a third-party, of any tort, direct or indirect, that results of the use or of the faulty execution of the Services.
In any event, should the Service Provider's liability be invoked, the Service Provider's warranty shall be limited to the amount excluding sales tax actually paid by the User for the delivery of the Services.
Article 7 – Pricing
Subscribing to the Services requires the User to purchase calling plans. The prices of the various calling plans are on display on the Site, in Euros, without sales tax, and are to be adjusted with the sales tax in effect the day of payment. The Service Provider reserves the right to modify the prices at any moment, with any modification affecting only the calling plans purchased after the price update.
Article 8 – Payment
Payment is due at the time of order and is payable by credit card on the Site. The price is payable in full on the day the order is placed by the User, according to the terms and conditions specified in the article "User Registration" above, via secured credit card payment: Visa, MasterCard, American Express, other accepted credit cards. Payment data is transmitted in encrypted mode through the protocol set up by EASYTRANSAC SAS. Payment by credit card is final, except in case of fraudulent use of the card. In this case, the User may request the cancellation of the payment and the refund of the corresponding sums.
The Service Provider shall not be obliged to provide the Services ordered by the User if the price has not been paid in full in advance under the conditions indicated above. The payments made by the User will only be considered final after effective collection of the amount due to the Service Provider.
The User can download an invoice for each purchase made directly from the Site. The Service Provider does not provide paper invoices. If the User is a French resident, or a resident of the European Union but does not have a valid EU VAT number, the value added tax in effect at the time of payment will be added to the price excluding tax.
In the event of late payment or payment of the sums due by the User beyond the term set out above, or after the date of payment appearing on the invoice sent to the User, late payment penalties calculated on the amount including tax of the price appearing on the said invoice will be automatically and ipso jure acquired by the Service Provider, without any formality or prior formal notice. The rate of these late payment penalties is equal to the rate applied by the European Central Bank to its most recent refinancing operation plus 10 percentage points.
In the event of non-compliance with the terms of payment set out above, the Service Provider reserves the right to suspend or cancel the delivery of any other orders in progress by the User.
Finally, a lump-sum compensation for recovery costs of forty (40) Euros will be due, ipso jure and without prior notification, in the event of late payment. The Service Provider reserves the right to request additional compensation from the User if the collection costs actually incurred exceed this amount, upon presentation of supporting documents.
The Service Provider reserves the right to allocate the sums paid in priority to the settlement of the oldest invoices, plus late payment interest and costs in the following order: costs, interest, principal, which the User expressly accepts.
The User may only claim as valid credit payments that are undisputed or legally enforceable. The User is a professional and therefore has no right of rescission. All sales are final.
Article 9 – Data Protection
The Service Provider takes particular care to comply with its obligations regarding the collection and processing of the personal data of the User and/or the User's staff in accordance with the regulations in force on the protection of personal data, applicable in Europe (GDPR) and in France. Its data protection policy is accessible on the Service Provider's Site.
Article 10 – Intellectual Property
The content of the Site and the software, products, graphic elements of the user interface and all other elements associated with the Services offered by the Service Provider are protected by intellectual property rights that belong exclusively to the Service Provider. This content cannot be reproduced, translated, transcribed or modified in any form or by any means without the prior written consent of the Service Provider. The User is not authorized to copy, modify, distribute, publish, transmit or create derivate work of any element of the content of the Site.
Access to the Services does not grant any right over the content of the Site, software and other products related to the Services offered by the Service Provider, nor on the logos, names, icons and branding elements that identify the products and services of the Service Provider and cannot be used without prior written consent.
Article 11 – Unforeseeability
In the event of a change in circumstances unforeseeable on the day an order is placed, in accordance with the provisions of Article 1195 of the Civil Code, the party who has not agreed to assume an excessively onerous risk of performance may request a renegotiation of his contract from his co-contractor.
If a renegotiation is successful, the parties will draft without delay an amendment to their agreement to formalize the result of the renegotiation. If a renegotiation fails, and in accordance with the provisions of Article 1195 of the Civil Code, the parties may request, by mutual agreement, the resolution of the dispute by a court, in accordance with the terms set out in Article 21.1 "Resolution for unforeseen circumstances", or the adaptation of the contract.
Article 12 – Forced Performance
In the event of a failure by either party to perform its obligations, the affected party shall have the right to demand forced performance of its obligations to the defaulting party. In accordance with the provisions of Article 1221 of the Civil Code, the creditor of the obligation may pursue such forced performance thirty (30) days after sending a formal notice, addressed to the debtor of the obligation via registered mail, unless it can be proven unfeasible or if there is an obvious disproportion between the cost to the debtor and its interest for the creditor.
Article 13 – Exception of Non-execution
Pursuant to Article 1129 of the Civil Code, either party may refuse to perform his obligation, even though it is due, if the other party does not perform its own and if this non-performance is sufficiently serious, that is to say, is likely to call into question the continuation of the contract or fundamentally upset its economic balance. The suspension of performance shall take effect immediately upon receipt by the defaulting party of the notice of default sent to him for this purpose by the party affected by the default indicating the intention to apply the plea of non-performance as long as the defaulting party has not remedied the default noted, served by registered mail with acknowledgement of receipt or on any other durable written proof of service.
The exception of non-performance may also be used as a preventive measure, in accordance with the provisions of Article 1220 of the Civil Code, if it is clear that one of the parties will not perform its obligations on the due date and that the consequences of such non-performance are sufficiently serious to the party suffering from the default. The suspension of performance shall take effect immediately upon receipt by the presumed defaulting party of the notification of the intent to apply the plea of preventive non-performance until the presumed defaulting party performs the obligation for which the future default is manifested, served by registered letter with acknowledgement of receipt or on any other durable written medium that allows proof of dispatch.
Article 14 – Force Majeure
The parties may not be held liable if the non-execution or delay in the execution of any of their obligations, as described herein, results from a case of Force Majeure, as defined in Article 1218 of the Civil Code.
The party experiencing the event must immediately inform the other party of its inability to perform and justify its inability to perform. The suspension of obligations may in no case be a cause for liability for non-performance of the obligation in question, nor induce the payment of damages or penalties for delay.
Performance of the obligation is suspended for the duration of the Force Majeure if it is temporary and does not exceed a period of 6 (six) weeks. Consequently, as soon as the cause of the suspension of their mutual obligations is lifted, the parties shall make every effort to resume normal performance of their contractual obligations as soon as possible. To this end, the party who is prevented from doing so shall notify the other party of the resumption of his obligation by registered mail.
Article 15 – Resolution
This agreement may be terminated at the discretion of the injured party in the event of non-compliance by either party with the following obligations pertaining to:
It is expressly understood that termination for failure by a party to fulfill its obligations shall take place ipso jure, the formal notice resulting from the sole fact of the non-performance of the obligation, without summons or execution of formalities.
It is expressly agreed between the parties that the debtor of an obligation to pay in accordance with the terms shall be validly put in default by the mere enforceability of the obligation, in accordance with the provisions of Article 1344 of the Civil Code.
In any event, the affected party may demand from the courts for an indemnification for damages.
Article 16 – Attribution of Jurisdiction and Applicable Law
This agreement is governed by French law. Any dispute arising in connection with the performance of this agreement shall oblige the parties to attempt conciliation in order to find an amicable solution in a conventional manner. If this attempt at conciliation fails, the dispute shall be submitted to the jurisdiction of the Court of Justice of STRASBOURG.
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