Terms of Sale
Talkspirit is a platform operated by talkspirit, a simplified joint-stock company (société par actions simplifiée) with a share capital of 16,000 euros, whose registered office is located at 60, rue François 1er, Paris (75008), registered with the Paris Trade and Companies Register under identification number 479 109 332 and whose intra-Community VAT number is FR50 479 109 332 (the “Provider”).
Talkspirit (the “Platform”) allows any legal entity or group of natural or legal persons (the “Organisation”) to access various communication services that are centralised and managed within a single interface, in accordance with the presentation and user guide available at the following address: https://help.talkspirit.com.
Various services are thus offered on the Platform (the “Service(s)”), including:
− the sharing of posts within user groups (the “Group(s) ”);
− access to an integrated instant messaging service;
− file sharing within Groups;
− the integration and centralised use of various applications (the “Application(s)”); and
− access to a search engine covering the data shared on the Platform.
The Organisation, acting as a professional within the meaning of the French Consumer Code (Code de la consommation) and in the course of its professional activity, acknowledges that it has the capacity required to subscribe to the aforementioned Services, and declares that it has read and accepted these General Terms and Conditions.
Preliminary Article - Definitions - Rules of Interpretation
0.1 Definitions
Capitalised terms and expressions used in the Contract have the following meanings:
“Organisation Access” has the meaning given to it in Article 2.1.1;
“Administrator” has the meaning given to it in Article 2.1.2;
“Affiliate(s)” means any legal entity controlling or controlled by the Organisation within the meaning of Article L. 233-3 I and II of the French Commercial Code (Code de commerce);
“Application(s)” has the meaning given to it in the recitals;
“Bug” means any design, implementation or programming error in the Platform that prevents the normal use of all or part of the Platform and/or produces an incorrect result or action when the Platform is used in accordance with the instructions;
“Contract” has the meaning given to it in Article 1.1;
“Guest(s)” has the meaning given to it in Article 2.1.2;
“Group” has the meaning given to it in the recitals;
“Member(s)” has the meaning given to it in Article 2.1.2;
“Organisation” has the meaning given to it in the recitals;
“Party(ies)” means the Provider and the Organisation;
“Platform” has the meaning given to it in the recitals;
“Provider” has the meaning given to it in the recitals;
“Service(s)” has the meaning given to it in the recitals; and
“Third Party” means any natural or legal person or any other entity that is not a Party to this Contract.
0.2 Rules of Interpretation
The following rules apply to the interpretation of the Contract:
(a) the headings of the articles and schedules are included for convenience only and shall in no way affect the interpretation of any provision of the Contract;
(b) the use of the expressions “including”, “in particular” or “notably” implies that the list that follows is neither restrictive nor exhaustive;
(c) the term “or” is not exclusive;
(d) the definition given to a term in the singular also applies to that term when used in the plural and vice versa. The same applies to the use of the masculine or feminine gender;
(e) time periods expressed in days, months or years shall be calculated in accordance with Articles 640 to 642 of the French Code of Civil Procedure (Code de procédure civile);
(f) any reference to a Party includes a reference to its heirs, successors and assigns; and
(g) any reference to a document means that document as it may be amended or replaced (other than in breach of the provisions of the Contract).
Article 1 - Purpose of the Contract
The purpose of the Contract is to define the terms and conditions applicable to access to the Platform and to the Services subscribed to by the Organisation.
The Provider grants to the Organisation, which accepts after having fully tested the Platform and its various Services with any expert of its choice, a right, under the strict conditions of Article 5, to access and use the Platform and the application Services for the entire term of the Contract. The Parties agree that this right of access and use is also granted, under the sole responsibility of the Organisation, to its Affiliates.
The Organisation may not assign all or part of the rights and obligations arising from this Contract without the prior written consent of the Provider.
For the proper performance of this Contract, the Organisation undertakes to notify the Provider as soon as possible of any change to its correspondence address (email or postal address). The Provider shall in no event be liable for the consequences of the Organisation failing to notify this information.
Article 2 - Access to and Use of the Platform
2.1 Terms of access to the Platform
2.1.1 Organisation Access
The Platform is accessible via the organisation access (the “Organisation Access”) at the following web address:
https://[organisation-name].talkspirit.com
It is also accessible via the Talkspirit mobile application, available and optimised for the latest versions of Android and iOS, as specified in the knowledge base at the following web address: https://[organisation-name].talkspirit.com.
Organisation Access is available from any compatible computer or mobile device using the credentials created. It gives access to the administration and management settings of the Platform, including the ability to appoint one or more Administrators (as that term is defined in paragraph 2.1.2 below).
The access credentials created are personal and confidential. The Organisation undertakes to use its best endeavours to keep the credentials secret and not to disclose them in any form whatsoever.
The Organisation is fully responsible for the use of these credentials. It shall ensure that no other person not authorised by the Provider has access to the Platform Services. Should it become aware that another person is accessing these services, the Organisation shall inform the Provider without delay and confirm this by registered letter.
In the event of theft or loss of the credentials, the Organisation shall inform the Provider without delay and confirm this by registered letter.
2.1.2 Administrator Access
Through its Organisation Access, the Organisation may open access for one or more administrators (the “Administrator(s)”). Login credentials are then provided to these Administrators, who are subject to the provisions of the last three paragraphs of paragraph 2.1.1 above.
The Administrator may, in particular, open, restrict or close user access to the Platform. Access to the Platform is opened by the Administrator through a member account (the “Member(s)”) or an invitation (the “ Guest(s)”) under the conditions of paragraph 2.1.3 below.
The Organisation may restrict or close Administrator access to the Platform at any time.
2.1.3 Member and Guest Access
Member and Guest Access are managed through the Organisation or Administrator Access. Login credentials are then provided to these Members or Guests, who are subject to the provisions of the last three paragraphs of paragraph 2.1.1 above.
Unlike a Guest, a Member may, depending on the permissions granted, access, create and, where applicable, manage a Group. A Guest may only access the Groups that have been opened to them.
The characteristics of the various types of access referred to above are specified in the user guide.
Notwithstanding the provisions of the Platform’s general terms of use, the Provider reserves its actions and remedies against the Organisation and/or its Affiliates, acting as guarantors, to the exclusion of any recourse against any Third Party, including Administrators, Members and/or Guests.
Consequently, the Provider reserves the right to take legal action, on any grounds and directly against the Organisation and/or its Affiliates, in the event of damage of any kind caused by Administrators, Members, Guests and/or any Third Party, in particular so that the Organisation and/or its Affiliates remedy all harmful consequences caused by these Third Parties. Accordingly, the Organisation and its Affiliates shall ensure that the Platform’s terms of use are duly complied with by its various users.
The Organisation is informed that it may submit to users, on the Platform and prior to any use of it, general terms of use whose content it is free to define. These terms must nevertheless comply with this Contract and with the Platform’s general terms of use established by the Provider and accessible here. Should the Organisation’s general terms of use conflict with any of the aforementioned documents, they shall be set aside and those documents shall legally prevail.
2.2 Technical conditions of access to and updating of the Platform
The Provider makes the Services available to the Organisation via the Platform, accessible on its servers through the internet 24 hours a day, 7 days a week, except during scheduled maintenance periods communicated in advance via the service https://talkspirit.statuspage.io.
To ensure the proper functioning of the Platform, it is specified that the Platform is optimised for the latest versions of the Internet Explorer, Chrome and Firefox browsers. The Provider is not responsible for the correct installation and operation of browsers on the Organisation’s workstations.
The Provider reserves the right to update the Platform and make functional changes to it at any time. The Provider shall communicate on the status of the service and on any updates and functional changes involving temporary unavailability of the Services at the following address: https://talkspirit.statuspage.io.
The Organisation is further advised of the technical contingencies and access interruptions that may occur. Consequently, the Provider shall not be held liable for any unavailability or slowdown of the Services.
The Organisation undertakes not to expose the Platform to any risk of hacking or any attempt to exploit vulnerabilities in the Platform and its security system. Accordingly, the Organisation shall implement all appropriate measures providing reasonable assurance of prevention of the aforementioned risks or of any other risks liable to affect the Platform and its hosting provider.
Should the Organisation wish to carry out a security audit of the Platform infrastructure, it shall bear the full financial cost and inform the Provider in advance of the conditions under which such an audit will be carried out.
The Provider undertakes to implement regular controls providing reasonable assurance that the Organisation can access and use the Platform under the conditions set out herein.
2.3 Support
A support service is offered on the Platform at the following address: https://help.talkspirit.com. This service is intended to provide assistance in using the Platform and, where applicable, to correct any Bug.
Any malfunction of the Platform that is directly or indirectly due to an external cause, and in particular to a usage error by the Organisation and/or any third party, or to an incident, is expressly excluded from the support service.
In the event of loss or corruption of data, the Organisation may nevertheless request the Provider’s assistance to recover all or part of that data. The Provider shall assess the feasibility of the data recovery and shall then issue an additional invoice agreed by mutual consent.
2.4 Applications and content compatible with the Platform
The Applications compatible with the Platform are listed in the user guide.
It is specified that the aforementioned list of Applications may change. For each of these Applications, Platform users may be required to enter the corresponding usernames and passwords on the Platform. In addition, Platform users undertake to use via the Platform only those accounts of the said Applications of which they are the full holders.
Article 3 - Offers
3.1 Choice of Offer and Term
The offers giving access to the Services are presented at the following address: https://www.talkspirit.com/pricing
Depending on the Offer chosen, this includes in particular:
- the scope of features offered
- the term of the subscription taken out by the Organisation, which may be monthly or annual
- the number of Platform users.
The choice of Offer is the sole and entire responsibility of the Organisation.
On expiry of the subscribed Offer, the Contract is automatically renewed under the same conditions.
3.2 Changes to the subscribed Offer
At any time during the performance of the Contract, the Organisation may change the subscribed Offer in the “Subscription” section of the Organisation’s administrator area, in the following cases only:
- the change of Offer by the Organisation increases the number of Platform users: the change of Offer takes effect immediately and the Organisation is subject to the new financial conditions for the period running from the day of the change of Offer;
- the change of Offer by the Organisation consists of switching from a monthly subscription to an annual subscription: the change of term takes effect on expiry of the Offer initially subscribed and the price is updated automatically on that date;
For any other change, in particular one reducing the number of Platform users or consisting of switching from an annual subscription to a monthly subscription, the Organisation shall be required to wait until the end of the Offer initially subscribed; none of these changes may take place during the performance of the Contract.
Article 4 - Data Ownership - Personal Data
4.1 Data ownership
The Organisation remains the owner of all data it communicates in the course of using the Platform.
The Organisation expressly authorises the Provider to host this data on the server freely chosen by the Provider and to use it, in particular for the purposes of operating the Platform, but also to process it for statistical purposes.
The Provider shall ensure that the server chosen for such hosting uses appropriate means to ensure the integrity of the creation and storage of the data, as well as the protection and confidentiality of the collection, storage and processing of the Organisation’s data.
4.2 Processing of personal data
4.2.1 Subject matter, nature, purpose and duration of the processing
In the course of the use of the Platform, the Provider may process the following personal data: surname, first name, date of birth, IP address, telephone number, social media identifiers.
The categories of data subjects concerned by this processing are all users of the Platform for whom access has been opened by the Organisation in accordance with the provisions hereof.
This data is collected from all Platform users solely for the purposes of:
- providing the Services, including user assistance and support;
- analysing the use of the Services and the associated statistics with a view to improving the performance of the Platform;
- meeting the legal and regulatory obligations applicable to the Provider.
The Parties agree that the Provider, at the time the data is collected, must provide users with information on the data processing it carries out. This information shall consist of communicating the Privacy Policy in force.
The data is retained for the entire duration of the provision of the Services and for no longer than seven (7) days from the end of the Contract for any reason whatsoever.
Under the Contract, the Provider undertakes, at the Organisation’s option, to:
- delete all personal data and existing copies, unless Union or national law requires the retention of such data;
- return such data to the Organisation within seven (7) days. The Organisation’s choice must be notified to the Provider no later than fifteen (15) days before the end of the Contract for any reason whatsoever. Failing such a choice within the aforementioned period, all of the aforementioned data shall be destroyed by the Provider without prior notice.
At any time during the performance of the Contract, the Organisation has the right to export the hosted data, with the exception of personal messages exchanged between users and their conversations in private chat rooms.
4.2.2 Role of the Provider
Within the meaning of Regulation (EU) 2016/679 of 27 April 2016, the Provider acts solely as a processor on behalf of the Organisation in connection with the processing of personal data.
Consequently, the Organisation alone determines the purposes and means of the processing of personal data. Personal data is processed by the Provider only on documented instructions from the Organisation, including with regard to transfers of personal data to a third country or an international organisation, unless the Provider is required to do so by Union or national law; in such a case, the Provider shall inform the Organisation of that legal requirement before processing, unless the law concerned prohibits such information on important grounds of public interest.
If the Provider considers that an instruction infringes Regulation (EU) 2016/679 of 27 April 2016 or any other Union or national data protection provision, it shall immediately inform the Organisation.
4.2.3 Confidentiality, security and cooperation
The Provider undertakes to ensure that the following obligations regarding personal data are complied with by its staff or by the service providers it uses for the performance of this Contract:
- not to make any copies of the documents and information media entrusted to it, except for those necessary for the performance of this Contract or with the prior consent of the Organisation, and more generally to guarantee the confidentiality of personal data;
- not to use the documents and information processed for purposes other than those specified in this Contract;
- to take all security measures required by Article 32 of Regulation (EU) 2016/679 of 27 April 2016. These measures are taken having regard to the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing, as well as the risks of varying likelihood to the rights and freedoms of the data subjects whose personal data is processed.
In addition, for the entire term of the Contract, the Provider undertakes:
- to assist the Organisation, insofar as possible, in fulfilling all of its obligations relating to requests from data subjects seeking to exercise their rights under Chapter III of Regulation (EU) 2016/679 of 27 April 2016, including in particular requests for access, rectification, erasure (right to be forgotten), restriction of processing, objection and portability;
- to make available to the Organisation all information necessary (i) to demonstrate compliance with the obligations laid down in Article 28 of Regulation (EU) 2016/679 of 27 April 2016 and (ii) to allow for audits or inspections, including by any Third Party mandated by the Provider; and
- to notify the Organisation of any personal data breach after becoming aware of it. This notification shall be accompanied by any useful documentation to enable the Organisation, where necessary, to notify the breach to the competent supervisory authority.
4.2.4 Third Party sub-processors
The Organisation authorises the Provider to use any sub-processor of its choice for the performance of this Contract. The Provider shall inform the Organisation of any intended changes concerning the addition or replacement of other sub-processors, thereby giving the Organisation the opportunity to object to such changes. This information shall include the processing activities subcontracted, the identity and contact details of the sub-processor and the dates of the subcontracting agreement. The Organisation has 15 calendar days from the date of receipt of this information to raise its objections. Such subcontracting may only take place if the Organisation has not raised objections within the aforementioned period.
The Provider undertakes to ensure that the said sub-processor(s) are subject to the same data protection obligations as those to which it is subject under this Contract, it being specified that where such other sub-processor fails to fulfil its data protection obligations, the Provider remains fully liable to the Organisation for the performance of that other sub-processor’s obligations.
Under these conditions, the Provider informs the Organisation that it currently uses the following sub-processors:
- OVH, 2 rue Kellermann - 59100 Roubaix - France.
4.2.5 Undertakings of the Organisation
The Organisation undertakes:
- to respond, within the time limits laid down by Regulation (EU) 2016/679 of 27 April 2016, to users’ requests when they exercise their rights with regard to the data that is the subject of the processing provided for in this Contract; - to be able to demonstrate that the data subjects whose personal data is collected have freely given their consent;
- to comply with all the provisions of Regulation (EU) 2016/679 of 27 April 2016 and of the national laws applicable to the processing of personal data;
- to document in writing any instruction concerning the processing of data by the Provider; and
- to supervise the processing, including by carrying out, at its own expense, audits and inspections of the Provider.
Article 5 - Licence and Intellectual Property
The Provider grants the Organisation a personal, non-exclusive, non-assignable and non-transferable right to use the Services for the entire term of the Contract.
This Contract confers no ownership rights over the Services. The temporary provision of the Services shall not be construed as the assignment of any intellectual property right to the Organisation.
The Organisation undertakes to use the Platform only in accordance with its needs. This licence is granted for the sole purpose of enabling the Organisation to use the Services in accordance with their intended purpose, to the exclusion of any other purpose.
The Organisation may under no circumstances make the Services available to any Third Party other than its Affiliates, and strictly refrains from any other use, in particular any adaptation, modification, translation, arrangement, distribution or decompilation, this list not being exhaustive.
The Organisation further refrains from reproducing any element of the Platform or any documentation relating to it, by any means, in any form and on any medium whatsoever.
Article 6 - Additional Services
6.1 Interoperability
The Provider does not guarantee the compatibility and interoperability of the Platform with other software used by the Organisation. Compatibility and interoperability of the Platform require additional software development to be carried out by the Provider. Such development may be carried out at the Organisation’s request and shall then be invoiced by the Provider under conditions to be determined by the Parties.
6.2 Supplementary services
Supplementary services may be provided by the Provider at the Organisation’s request. These services shall be carried out by mutual agreement and invoiced by the Provider under conditions to be determined by the Parties.
Article 7 - Liability
7.1 Obligations and liability of the Organisation
7.1.1 Use of the Platform
The Organisation is required to ensure that its use of the Platform complies with legal and regulatory provisions as well as with the Platform’s general terms of use set out here. The Provider gives the Organisation no guarantee as to the compliance of the use it makes or intends to make of the Platform with legal and regulatory provisions.
The Organisation is liable to the Provider for the use of the Platform by Administrators, Members, Guests or any Third Party.
7.1.2 Data and content
The Provider does not control the use made of the Platform by the Organisation or the various data and information entered by the Organisation and by any third party, including Guests. The Provider shall in no event be held liable for such content.
The Organisation is therefore solely responsible for the content, and for the conditions and consequences of publishing or not publishing content via the Platform. It shall ensure compliance with legal and regulatory requirements and shall deal with any disputes itself.
The Organisation undertakes not to enter content liable to breach public order or morality, to give rise to objections from third parties, or to contravene the legal provisions in force.
Consequently, it is expressly agreed that should the Provider be held liable, in any capacity whatsoever and in any country whatsoever, by a third party on the basis in particular of an industrial and/or intellectual property right relating to an element directly or indirectly (for example, through contributors) supplied by the Organisation, an Administrator, a Member, a Guest or any Third Party, the Organisation undertakes to fully indemnify the Provider against the direct and/or indirect economic and financial consequences (including legal and defence costs) arising from such claims.
The Organisation shall ensure that data is sent to the Platform and may not hold the Provider liable, on any grounds and in any capacity whatsoever, for the non-receipt or loss of transmitted data. The Organisation shall therefore keep a backup of the data transmitted.
The Parties agree that all data exchanged by users in personal messages or via the Platform’s chat shall be destroyed by the Provider without prior notice to the Organisation. The Organisation may not, consequently, claim the return of all or part of this data from the Provider.
During the performance of the Contract, the Organisation may also extract the data entered into and generated by the Platform, under the conditions specified in the user guide. The Organisation shall accordingly acquire, at its own expense, the tools and skills required to make use of this data.
7.1.3 Analytics and statistics
The analytics and statistics provided by the Platform are for information purposes only. Consequently, the Organisation is solely responsible for any action taken on the basis of these analytics and statistics. It may not blame the Provider or seek to hold it liable, on any grounds and in any capacity whatsoever, in particular for the financial and commercial consequences directly or indirectly linked to these analytics and statistics.
7.2 Obligations and liability of the Provider
The Provider performs its activity under a best-endeavours obligation and declares to the Organisation that:
- the technical services provided for herein, including in particular the hosting of the Organisation’s data and the provision of administration tools for managing and running the Platform, shall be performed with the care and diligence required to deliver a reliable, good-quality Service;
- to the Provider’s knowledge, the Services are not the subject of any Third Party claim. Consequently, it is expressly agreed that should the Organisation be held liable, in any capacity whatsoever and in any country whatsoever, by a Third Party on the basis in particular of an industrial and/or intellectual property right relating to an element of the Platform supplied by the Provider, the Provider undertakes to fully indemnify the Organisation against the direct and/or indirect economic and financial consequences (including legal and defence costs) arising from such claims;
- the identification data of internet users using the Service shall be transmitted without delay to any judicial and/or administrative authorities that request it; and
- access to any disputed content liable to infringe French and/or European Union law may be suspended without prior notice.
The Provider shall nevertheless not be held liable in the event of:
- temporary interruptions of the Services required for their proper functioning and/or for the development of the IT system in order to improve its performance and/or for its maintenance;
- operating difficulties or temporary interruption of its services beyond its control, in particular in the event of interruption of electricity or telecommunications services; or
- misuse of the Services by their users.
Should the Provider be found liable, it is expressly agreed that its liability shall be limited, by mutual agreement, to the amount of the fees actually paid by the Organisation under this Contract.
7.3 General provisions
Each Party expressly undertakes to comply with the regulations applicable to its own activities. Each Party further undertakes to always behave, towards the other Party and towards users, as a loyal partner acting in good faith.
In any event, neither Party shall under any circumstances be liable for the other Party’s indirect or unforeseeable losses or damages, including in particular any loss of profit, inaccuracy or corruption of files or data, commercial loss, loss of turnover or profit, loss of customers or loss of opportunity connected in any capacity and on any grounds whatsoever with this Contract.
Neither Party shall be liable for any delay in or failure to perform this Contract that is justified by an event of force majeure, as defined by the case law of the French courts and tribunals.
Article 8 - Fees
The Organisation is liable for a fixed monthly or annual fee, the amount of which is set according to the Offer chosen.
VAT may be payable by the Organisation to the Provider in accordance with the applicable European Union provisions. Accordingly, the Organisation undertakes, on simple request from the Provider, to supply accurate and genuine information regarding its legal and tax status.
For a monthly subscription, the monthly fee shall be paid on the date the Contract is concluded and on each monthly anniversary of its conclusion, by the following means:
- By bank card: Visa, MasterCard, American Express.
- By direct debit
For an annual subscription, the annual subscription price shall be paid in full on the day the order is placed, by the means set out above.
Payment data is exchanged in encrypted form.
Payments made by the Organisation shall only be considered final once the sums due have actually been received by the Provider. Access to the Services shall then be opened once the sums have been duly received.
Without prejudice to any damages, failure by the Organisation to pay a single instalment on the due date shall automatically give rise to late-payment interest equal to three times the statutory interest rate, without prior formal notice and from the first day of delay, plus additional bank and administration charges. The Organisation and its users shall also cease to have access to the Platform services.
An invoice is issued by the Provider and delivered to the Organisation as soon as payment has been made.
Article 9 - Termination
In the event of a breach by either Party of its contractual obligations, the Contract may be terminated automatically by the other Party fifteen (15) days after sending a formal notice by registered letter with acknowledgement of receipt that has remained without effect. The formal notice shall specify the breach(es) identified.
Once the Contract has ended for any reason whatsoever (in particular cancellation, termination or expiry), all of the Organisation’s data, without prejudice to the specific provisions on personal data in Article 4.2.1, may be destroyed by the Provider without prior notice. The Organisation shall therefore keep a backup of this data before deleting its member account.
Article 10 - Non-competition
For the entire term of the Contract and for a period of one year from the end of the Contract for any reason whatsoever, the Organisation shall refrain from developing or having developed a platform liable to compete with that of the Provider, in any form and by any means whatsoever, including by acquiring a shareholding in a company carrying on an activity similar to that of the Provider.
The Organisation shall refrain from developing or marketing, or having any third party develop or market, a platform, application or any software liable to compete directly or indirectly with the Platform that is the subject of the Contract, for the entire term of the Contract and for one year from the end of the Contract for any reason whatsoever.
Article 11 - Communication
The Organisation authorises the Provider to communicate, on any medium and by any means, the fact that the Organisation is a customer of the Provider under this Contract. To this end, the Provider may use the Organisation’s logo on its website or on any other communication medium. The Provider shall nevertheless submit to the Organisation the medium on which its logo will be used before any communication.
Article 12 - Governing Law - Evidence Agreement
This Contract is governed by French law.
Computer systems and files shall constitute evidence in dealings between the Parties.
Accordingly, the Provider may validly produce as evidence in any proceedings the data, files, programs, records or other items received, sent or stored by means of the computer systems it operates, on any digital or analogue medium, and rely on them, save in the event of manifest error.
Article 13 - Disputes
Any dispute arising from the interpretation, performance or non-performance of this Contract, or from its consequences, shall, should the dispute be brought before the civil courts, be submitted to the Paris Commercial Court (Tribunal de commerce de Paris).