Effective Starting Date: 03/07/2018
Section 1. PREAMBLE
The POWER UP CONSEIL company has developed and marketed the TEAMMOOD SOFTWARE designed to help businesses measure and monitor their employees’ well-being. These general terms and conditions define the terms and conditions pertaining to the SOFTWARE. Anyone using the services offered by the SOFTWARE is irrefutably deemed to have been informed of and have agreed to these general terms and conditions.
Section 2. DEFINITIONS
CONTROLLER : within the meaning of Section article 4.7 of the GDPR, means: “the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by Union or Member State law, the controller or the specific criteria for its nomination may be provided for by Union or Member State law.”
GDPR: (General Data Protection Regulation) (EU) 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.
LICENSEE: defines a corporation which has subscribed to TEAMMOOD.
MANAGERIAL STAFF: the person in charge of controlling usage within the customer’s business.
Operator: provider of access to the Internet.
PERSONAL DATA (or PD): within the meaning of article 4 (1) of the GDPR: “any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.”
PROCESSING:Within the meaning of article 4.2 of the GDPR: “any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.”
SaaS (software as a service): software application remotely accessed through the web, like a service.
Server(s): material- or software-type device enabling access to certain services, whether they are accessible or not through the web.
SOFTWARE: all programs, processes, rules, and documentation pertaining to the operation of a data processing set (Decree of 12.22.1981 regarding the enhancement of computer vocabulary – JO of 01.17.1982). Under these general terms and conditions, the SOLUTION corresponds to the SOFTWARE involved in the contract.
TEAMMOOD: software developed by POWER UP CONSEIL designed to measure the well-being of employees.
THE SOLUTION: the TEAMMOOD software accessible in SaaS mode.
USER(S): any person using the SOLUTION.
Section 3. OBJECTIVE
The objective of these general terms and conditions is to define the access and usage rights with respect to the SOLUTION’s functionalities for anyone called upon to access and use such rights, either by consulting the content, producing such content or transmitting it to specific persons.
Section 4. DESCRIPTION OF THE SOLUTION
TEAMMOOD anonymously collects the mood of employees, as well as their comments, through the exchange of text contents between USERS. Subject to the authorizations granted by their organization, all USERS may consult these contents. The SOLUTION is accessible on mobile and stationary equipment. TEAMMOOD provides data-hosting and ensures the maintenance and security of the SOLUTION. TEAMMOOD is optimized to work with the following solutions: Google Chrome v36 and above, Firefox v42 and above, and Safari v9.0 and above. Clients should, therefore, check the configuration of their software tools before subscribing to the SOLUTION.
Section 5. NETWORK AND ACCESS TO THE SOLUTION
A connection to the Internet is required for access to the SOLUTION. POWER UP CONSEIL is not responsible for the proper operation of that network. Subject to the provisions of these GENERAL TERMS AND conditions, access to the SOLUTION is available 24 hours a day, 7 days a week, including Sundays and holidays.
Section 6. SECURITY AND ACCESS TO THE SOLUTION
The registration process is subject to prior acceptance of these general terms and conditions. Access to the SOLUTION is secured by a password assigned to the USER, who agrees to keep it confidential. The USER is entirely responsible for the security information transmitted to him (her) and is responsible for its confidentiality. Such information may only be modified at his (her) request. A USER who loses his (her) identifiers or who notices the illegal use of such identifiers shall immediately notify POWER UP CONSEIL thereof.
Section 7. EQUIPMENT PROTECTION
The USER shall be liable for the protection of the equipment enabling his (her) access to the SOFTWARE and ensuring the preservation of his (her) data against any malicious attack. POWER UP CONSEIL shall not be liable for damages to the USER’s equipment and/or data through the Internet network or otherwise.
Section 8. QUALITY OF SERVICES
The USER acknowledges that the Internet network may be subject to interruptions and/or operation slowdowns and that POWER UP CONSEIL may not be held liable thereof. Therefore, POWER UP CONSEIL is unable to guarantee the continuity of the use of the SOLUTION.
Section 9. SUSPENSION OF SERVICES
Access to the SOLUTION or any of its functionalities may occasionally be suspended to allow interventions and maintenance required to ensure the proper operation of the software. POWER UP CONSEIL shall not be liable for any consequences related to the unavailability of the service as a result of a maintenance operation or an update of the services.
Section 10. PRICING
The subscription shall be paid, in advance, on a monthly or an annual basis. The rates are based on the number of users. Payment shall be due for any month underway. No prorated refund shall be made in the event of a subscription cancellation. Except for a 30-day trial period, your subscription price may be adjusted upward or downward at the end of each billing cycle, based on changes requested. Rates are likely to change. Information regarding pricing is available at any time at https://www.teammood.com/en/pricing.
Section 11. CANCELLATION
The TEAMMOOD subscription may be cancelled at any time through your account’s administration console. As indicated under section 10, no prorated refund is made during a subscription period and payment is due for any month underway. By agreeing to these terms and conditions, you acknowledge that you have been advised that all data generated during your subscription period will be destroyed at the end of such period.
Section 12. USER LICENSE
The user license includes a right to access the SOFTWARE and to use it within the limits of the authorizations granted, including, for the MANAGERIAL STAFF, a right of access to the analysis functionalities of the contents generated by the USERS.
Section 13. DATA PROCESSING
Section 13.1 Definition of the PD PROCESSOR
The LICENSEE acknowledges that POWER UP CONSEIL does not process the PD in its name and/or on its own behalf. TEAMMOOD is, however, able to provide access to the functionalities of its SOFTWARE through this contract. These terms and conditions, therefore, define the liabilities of POWER UP CONSEIL and of the LICENSEE in light of all the legal provisions regarding the protection of personal data and are designed to inform anyone whose PD is being collected and processed.
The LICENSEE declares and agrees that:
- it alone determines the purposes and means of PD processing
- it is and remains solely responsible for the PROCESSING completed through TEAMMOOD
- it is solely responsible for the legal consequences resulting directly or indirectly from litigation, disputes and/or liability commitments related to the PROCESSING of PD
- it is required to respond to individuals’ rights regarding their PD
Section 13.2 Contract WITH TEAMMOOD REQUIRED for subcontracting THE processing of data
If the LICENSEE wishes to ask POWER UP CONSEIL to process its PD, it shall do so with a duly signed contract between the parties, based on section 28.3 of the GDPR: “Processing by a processor shall be governed by a contract or other legal act (…) that is binding on the processor with regard to the controller and that sets out the subject-matter and duration of the processing, the nature and purpose of the processing, the type of personal data and categories of data subjects and the obligations and rights of the controller (…)” ).
In the absence of a specific contract, the LICENSEE expressly waives POWER UP CONSEIL’s liability for any legal consequences directly or indirectly related to litigation, disputes and/or commitments in connection with the PROCESSING of PD.
Section 13.3 LIABILITY limitations for TEAMMOOD
If no misconduct on the part of POWER UP CONSEIL is found in a final judgment, which is unlikely to be appealed, the LICENSEE shall fully release POWER UP CONSEIL, on demand, against all harmful legal and financial consequences it may suffer directly or indirectly as a result of a violation of legal and/or regulatory obligations related to the protection of PD.
Section 13.4 Duty of TEAMMOOD to inform, advise and warn LICENSEE
POWER UP CONSEIL provides the software and informational tools that enable the LICENSEE to comply with the GDPR provisions. Should the LICENSEE, however, identify a technical problem possibly involving the violation of one or several provisions of the GDPR, it may seek TEAMMOOD’s support at firstname.lastname@example.org
Section 13.5 STATEMENT OF COMPLIANCE WITH THE DATA PROTECTION REGULATION
Under the laws in force, the LICENSEE acts as the controller of the data it uses. The LICENSEE hereby declares to POWER UP CONSEIL that it has filled all its obligations under Statute No. 78-17 of January 6, 1978, known as “Computers & Freedom,” and under the GDPR. For purposes of complying with its obligations, it is hereby informed by POWER UP CONSEIL that the location of the latter’s servers is as follows: AMAZON WEB SERVICES, One Burlington Plaza, Burlington Road, Dublin, Ireland. With respect to the transmission of PD, the LICENSEE declares that it has informed the affected natural persons how their data is being used. The USER shall immediately inform the LICENSEE of his (her) opposition to such use so that it may remove his (her) data from the database.
Section 14. DATA SECURITY
POWER UP CONSEIL uses the technical and organizational measures required to avoid any fraudulent access or use of the data it receives and to prevent the loss, modification and/or destruction of such data. POWER UP CONSEIL makes redundant backup copies, on a regular basis, of the data used by the LICENSEE in order to apply, maintain and administer the SOFTWARE. POWER UP CONSEIL shall not be held liable for problems related to the user’s connection to the Internet, to computer viruses transmitted through this network or otherwise, or to any malicious attacks carried out through this network or by other means. POWER UP CONSEIL shall not be held liable for damages to the USER’s equipment and/or data through the Internet network or by other means. POWER UP CONSEIL does not guarantee the continued use of the SOLUTION if it is used by the USER through a remote connection.
Section 15. PUBLISHED CONTENTS
The LICENSEE shall ensure at all times that no comments are posted which include anything that may prejudice the safety, health, dignity, and morality of the employees. It shall also ensure that these postings do not undermine the respect owed to others and It agrees, more broadly, to delete any content contrary to the interest of a specific person. Under Statute No. 2004-575 of June 21, 2004, regarding confidence in the digital economy, the LICENSEE has no ” general obligation to monitor the information it transmits or stores, nor any general obligation to research facts or circumstances that could disclose illegal activities .” Any user who notices the publication of online content violating his (her) rights, a third party’s rights or any legal or regulatory document shall immediately report this by e-mail to email@example.com
Section 16. broadcasting RESPONSIBILITY
Any publication or broadcasting of contents on social media, or on any other type of media, arising out of contents generated through TEAMMOOD is under the sole responsibility of the author of such publication or broadcasting. POWER UP CONSEIL shall not be liable for any type of harmful effects likely to result therefrom.
Section 17. FORCE MAJEURE EVENT
In compliance with section 1218 of the French Civil Code, any breach of an obligation under this agreement due to a force majeure event shall exempt the parties of any liability. If such an event occurs, the party prevented from providing its services shall notify the other party by any means available and in a timely manner. The suspension or delay in carrying out an obligation shall in no case be considered a liability for non-performance, nor shall it entail the payment of damages or of late fees.
Section 18. IDENTIFYING DATA – RIGHT OF ACCESS
The USER is informed that subject to complementary information provided by POWER UP CONSEIL and/or new data communication requests, the legal bases for the processing of PD are as follows:
- Article 6.1.b of the GDPR: “processing is necessary for the performance of a contract to which the data subject is a party or in order to take steps at the request of the data subject prior to entering into a contract”
- Article 6.1.c of the GDPR: “processing is necessary for compliance with a legal obligation to which the controller is subject.”
The identifying data regarding the USER for access to the SOLUTION is designed for the technical, accounting, and commercial services of POWER UP CONSEIL, in its capacity as controller, and for its contracting partners. In compliance with Statute No. 78-17 of January 6, 1978 on computers, files and freedoms and with the GDPR, the USER has a right of access, correction, opposition, suppression and portability with respect to the data regarding him (her), which may be exercised by writing to POWER UP CONSEIL, 2 rue Auguste Valats – I65 – 31300 Toulouse, France.
Section 19. INTELLECTUAL PROPERTY
Except for brands, logos or contents belonging to other partner corporations or authors, the entire content of the WEBSITE, including without limitation, graphics, images, texts, videos, animations, sounds, logos, gifs and icons, as well as their formatting, is the exclusive property of the POWER UP CONSEIL corporation; any reproduction, distribution, modification, adaptation, retransmission or publication, even on a partial basis, of these various items, is strictly prohibited without an express written agreement to that effect.
Such representation or reproduction, by any process whatsoever, is an infringement prohibited under sections L.3335-2 and following of the Intellectual Property Code. Non-compliance with this prohibition constitutes an infringement regarding which the infringer may be held civilly and criminally liable. It should also be recalled that these offenders may be sued by the owners of the copied contents.
POWER UP CONSEIL also owns the “rights of database producers” it produces, referred to in Book III, Title IV, of the Intellectual Property Code (Statute No. 98-536 of July 1, 1998) regarding copyrights and databases.
Section 20. AMENDMENTS OF GENERAL TERMS AND CONDITIONS
POWER UP CONSEIL reserves the right to amend its general terms and conditions, at any time, without prior notice. The USER may be advised of these amendments by e-mail sent to the e-mail address (s)he provided upon signing up. (S)He may be requested to accept these amendments before being able to access his (her) PROFILE again and the services offered on the WEBSITE.
Section 21. MARKETING COMMUNICATION
By agreeing to these general terms and conditions, the CLIENT authorizes POWER UP CONSEIL to disclose their collaboration and to share the CLIENT’s trade name and represent its logo in its communication materials.
Section 22. INSURANCE
POWER UP CONSEIL has taken out an insurance policy from a reputedly solvent insurance company and may provide to the CLIENT, upon its request, a proof of such insurance (request to be addressed exclusively by mail to POWER UP CONSEIL, 2 rue Auguste Valats – I65 – 31300 Toulouse, France. Such request shall include a proof of registration with TEAMMOOD and an excerpt from the certificate of incorporation).
Section 23. APPLICABLE LAW- ARBITRATION – COURT OF COMPETENT JURISDICTION
In the event of a dispute or litigation arising out of the use of a service made available to the public by POWER UP CONSEIL, the parties shall attempt to reach an out-of-court settlement prior to any judicial proceedings. To this end, within 30 days of the onset of the dispute, a meeting between the parties to this dispute shall take place in a location within the jurisdiction of the Court of Appeal of TOULOUSE – France. Should they fail to reconcile within 15 days of this meeting, the POWER UP CONSEIL corporation and the natural or legal person it is opposed to shall recover their right to take a legal action (these provisions are not applicable to consumers).
In compliance with section 2254 of the French Civil Code, no legal action involving POWER UP CONSEIL’s liability may be undertaken more than one calendar year after the dispute arose. In the event of litigation resulting from the use of a service available to the USER, the competent jurisdiction shall be that of the Court of Appeal of TOULOUSE.
It is likely that these general terms and conditions will be translated into a language other than French. In the event of a contradiction between the translated version and the original French version, the parties hereby expressly agree that the French version shall prevail and that the version translated into another language shall not be enforceable against POWER UP CONSEIL.
- Version 1.0, June 27, 2015. Initial release.
- Version 1.1, September 15, 2015. ‘Payment of Fees, Refunds, Upgrading and Downgrading’ and ‘Cancellation and Termination’ sections.
- Version 2.0, October 9, 2017. Change of Legal Form.
- Version 3.0, July 3, 2018. GDPR compliance.
Legal mentions / Mentions légales
TeamMood is a French company. For legal reasons, the following information will be in French, it gives our address and administrative information.
TeamMood est édité par Power Up Conseil, SAS au capital de 2000€.
SIREN n° 830 493 474, R.C.S. Toulouse
Greffe du Tribunal de Commerce de Toulouse
Déclarations CNIL n° 1905292
Power Up Conseil – TeamMood
2 rue Auguste Valats – I65