The present general conditions of use for Software packages in SaaS mode ('General Conditions') are concluded between Utopie, a limited liability company with its registered office at 68 Lotissement Essalama, registered in the Casablanca Trade Register under number 347585 ('UTOPIE') and any professional wishing to benefit from the use of Software packages in SaaS mode (the 'Customer').
The present General Conditions apply to the supply of Software Package in SaaS mode by Utopie to professional customers. Use by the Customer of the SaaS software solutions marketed by Utopie necessarily entails acceptance of these General Conditions.
The Customer, after having taken cognizance of the potentialities, purpose, functionalities, standard nature and operating mode of the SaaS service identified in the quotation and after having appreciated the opportunity to request from UTOPIE a detailed presentation of the SaaS, in particular of the Software Package, has decided to take advantage of it from UTOPIE. The Customer acknowledges having received all the information and advice allowing him to assess UTOPIE's proposal and has ensured that the SaaS meets his needs.
Anomaly : means, depending on the maintenance services subscribed, a malfunction of the Software Package, reproducible by UTOPIE, preventing its use in accordance with the Documentation.
Contract : means these General Conditions, the quotation, and their possible annexes.
Destination : means the conditions of exercise of the right of use granted by UTOPIE.
Documentation : means the description of the functionalities and the instructions for use of the Software Package. It is provided in electronic form in the French language. Any other documentation is excluded from the scope of this Agreement, in particular the commercial documentation and the training documentation.
Malfunction : means any difficulty in accessing the Operating Platform noted by UTOPIE.
Operating Platform : means all hardware, software, operating system, database and environment provided by UTOPIE on which the Software Package will be operated.
Software Package : set of functionalities of one or more programs and their documentation, designed to be provided to several users for the same use. In the context of these General Terms and Conditions, the Software Package corresponds:
Party or Parties :refers to Utopia and the Customer in the plural and to one of them in the singular
The iPad cash register software: refers to Utopia and the Customer in the plural and to one of them in the singular
It is the Customer's responsibility to ensure :
It is the Customer's responsibility to verify, in accordance with the practices of their profession, the results obtained with the software package used in the SaaS.
The purpose of the Contract is to define the conditions under which UTOPIE : :
The Contract is concluded for a period of one year from the date indicated in the 'designation' part of the invoice sent to the Customer, unless otherwise indicated in the invoice. (the 'Initial Period') At the end of the Initial Period, this Agreement shall be tacitly renewed for successive periods of twelve (12) months, unless terminated by one of the Parties by registered letter with acknowledgement of receipt at least six (6) months prior to the expiration of the current period. Termination, or the end for any reason whatsoever, of this Contract does not give rise to the reimbursement of sums collected by Utopie.
Each user logs in with his personal domain identification login and his personal password.
Users can access the Operating Platform remotely, from the Internet address communicated to the Customer.
The SaaS Platform is available to users on a permanent basis (i.e. 24 x 7). However, UTOPIE may, if necessary, interrupt its services during the maintenance period (said maintenance operations must take place between 9:00 p.m. and 7:00 a.m., Moroccan time), in particular to carry out any data backup operations and/or maintenance of its own hardware and software resources used to provide hosting services.
UTOPIE undertakes to inform the CUSTOMER in advance, by any means justifying receipt by the Customer, of any scheduled interruption of services outside the maintenance period. Exceptional maintenance operations, including the application of critical security updates, are excluded from this information measure.
UTOPIE ensures, within the framework of the physical and logical security rules in force on the day of the signature of the quote, the protection of the entire Operating Platform, the results, the processing and the transmissions carried out, as well as the backups made on the Operating Platform.
The Customer is solely and totally responsible for the use, conservation and confidentiality of the identifiers and passwords allowing access to the Operating Platform.
All data created or modified by the Client using the Software Package are stored in a database or any other medium defined by UTOPIE; on one or more servers located on a secure site.
The volume of accessible stored data is limited to twelve (12) months plus the current month. Beyond this period, UTOPIE shall make available to the Client, said data on a computer medium, at UTOPIE's choice and at the Client's expense.
The right to use the SaaS is granted by UTOPIE to the Customer during the whole duration of the Contract.
The SaaS must be used in accordance with the provisions of this Agreement, as well as the instructions and guidelines for use, safety and proper operation contained in the Documentation provided to the Customer.
The SaaS shall be used in accordance with its intended purpose; for the Customer's own needs only and, unless otherwise specified, excluding any office services, within the limit of the number of users authorized by the quote.
The Customer undertakes to inform UTOPIE immediately if the number of users of the SaaS exceeds the maximum number of users stated in the quotation. In this case, the Customer will immediately owe UTOPIE an additional fee, the amount of which will be defined in an additional quote.
Any use not expressly authorized by UTOPIE under the terms of the Agreement is unlawful, in accordance with Article 10 of Law No. 2-00 relating to copyright and related rights promulgated by Dahir No. 1-00-20 of July 6, 2000 (the 'Law No. 2-00').
It is notably forbidden to the Customer to proceed to :
UTOPIE declares that it holds all the rights necessary for the conclusion of the Agreement. The right of use granted by UTOPIE by the Agreement does not entail the transfer of intellectual property to the Client. Consequently, the Customer shall refrain from any action that may directly or indirectly infringe upon the copyrights of the Software Package, which is protected by the Law n°2-00.
In case of claim of infringement by the Software Package of an intellectual or industrial property right in Morocco, UTOPIE may, at its own choice and at its own expense, either replace or modify the whole or any part of the Software Package, or obtain for the Customer a user license, in order to allow him to use the SaaS, provided that the Customer has respected the following conditions
In the event that none of these measures are reasonably possible, UTOPIE may unilaterally decide to terminate the Agreement and refund to the Customer the fees paid for the last twelve (12) months of use of the SaaS Service.
The provisions of this section define the entirety of UTOPIEs obligations with respect to patent and copyright infringement as a result of the use of the Software Package.
During the term of this Agreement, the Customer shall benefit from the supply and installation of corrective and technological updates of the Operating Platform. In addition, UTOPIE shall provide the Customer with telephone support and maintenance services (hereinafter 'the Services') relating to the Software Package.
Within the framework of this Agreement, UTOPIE provides the Customer with a team of Support Consultants to ensure the technical and functional assistance of the Software Package. Except for holidays and exceptional days when UTOPIE is closed, and except in cases of force majeure as defined herein, the hours of intervention of this support team are from 9:00 a.m. to 6:00 p.m. from Monday to Friday. UTOPIE reserves the right to modify its hours of operation and will notify the Customer by any means at its convenience of the new hours.
To benefit from the assistance, the Customer shall contact, during the assistance hours, by phone the UTOPIE Support Consultants team at the number previously communicated to him.1. The maintenance of the Software Package includes the following services:
- Access to telephone assistance provided exclusively to accompany the use of the Software Package or for the treatment of Anomalies. The number of telephone calls is not limited. A remote handling can be envisaged according to the technical availabilities and following the written authorization of the Customer.
- The supply of updates of the Software Package subject to the stipulations of the present article. The need to perform an update is decided unilaterally by UTOPIE in view of legal and technological developments. The updates are directly implemented by UTOPIE on the Software Package and may include, depending on the case
- The correction of Anomalies in the form of patches, transmitted by UTOPIE at the request of the Client, the modifications made necessary by the evolution of the legislative or regulatory texts applicable to the functions processed by the Software Package, except if these modifications require a substantial modification of the Software Package which will then be the subject of notification by UTOPIE to the Client,
- The improvement of existing functions
- Annual review meeting upon request of the Customer : the Customer benefits from an annual telephone review meeting fixed by UTOPIE in agreement with the Customer. It allows us to review the areas of optimization and improvement of the use of the Software Package.
- Newsletter Subscription: The Customer will receive the UTOPIE Newsletter on a regular basis by e-mail after having provided his e-mail address. This Newsletter is intended to inform the Customer about commercial and technical news concerning PRECISION products.
Any exchange of programs or data between the Customer and Precision Systems must respect the support standards in force at UTOPIE at the time of sending.2. The following are excluded from the Services performed by UTOPIE under this Agreement :
- Any use of the Software Package that does not comply with the Documentation, the instructions for use or its Intended Use, or any abnormal use, for whatever reason (in particular in the event of negligence, operating error, accident, ...);
- Any work or supplies not explicitly mentioned in this contract, including telephone training of the Customer's personnel.
- A compatibility problem between the equipment provided by UTOPIE and any other equipment of the Customer or failure of the latter;
- The provision of a telecommunications network allowing access to the Software Package;
- A problem of compatibility between the telecommunications networks and the Software Package;
- A failure of one of the elements constituting the software environment of the Customer (operating system, other software or software packages, network systems...);
- In general, the failure of the Customer to comply with its obligations under the Agreement and any other contract concluded with UTOPIE.
The Agreement does not cover additional services recommended by UTOPIE or requested by the Customer to meet its specific needs. Thus, for example, consulting, training and advisory services shall be the subject of a separate contract between the Client and UTOPIE.
In order to allow the realization of this service, the Client undertakes in particular:
- To refer to the Documentation before each request for intervention;
- To make available to UTOPIE any necessary information requested by UTOPIE for the understanding and resolution of the Anomalies encountered;
- Designate, within UTOPIE, a competent person in charge of the treatment of the Anomalies, and that he/she is available during the whole intervention of UTOPIE;
- To facilitate the access of UTOPIE s personnel to all its facilities if necessary and to ensure that UTOPIE s personnel have free access to the premises and to indicate an appropriate contact person;
- To install and administer its equipment and applications not provided by UTOPIE, and its networks.
The amount of the fee defined in the quote for SaaS is constant over the Initial Term. The services performed during the Preparatory Period shall be invoiced and paid according to the terms and conditions defined in the quote.
Notwithstanding the provisions of article 323 of the Dahir of Obligations and Contracts, it is expressly agreed that in the event that several invoices are due and that the Client proceeds to a partial payment, UTOPIE will be free to charge the said payment as it sees fit.
In the event of non-payment of an invoice on its due date, UTOPIE may, without prior notice, demand immediate payment of all sums still owed to it by the Customer and suspend SaaS services. No compensation may be made without the formal agreement of UTOPIE.
This suspension does not entail any change in the amount of the monthly fee which remains due for the entire current period.
The service will resume as soon as the cause of suspension has been removed without extension of the current period.
The Customer declares that he/she is familiar with the Internet, its characteristics and its limits, and recognizes in particular
The Parties acknowledge that only the Customer has the capacity to control and know the content passing through the Operating Platform.
The Client guarantees that it has all authorizations to use and/or distribute in the territory, information and data of any kind, hosted by UTOPIE and is solely responsible for the consequences of making them available to the public, even if it is restricted to the Internet. In particular, the Client is solely responsible for any damages suffered or borne by UTOPIE, if any, due to the presence of illegal data on the Client's pages, such as defamatory and racist statements.
The Client declares that he is the only person responsible for the processing of personal data processed on the Operating Platform, in accordance with the provisions of the law n°09-08 relating to the protection of individuals with regard to the processing of personal data (the 'Law n°09-08').
In the event of a breach of the provisions of Law n° 53-05 relating to the electronic exchange of legal data or of Chapter X of the Penal Code, established by a judicial authority, or in the event of an injunction issued by the judicial authority to remove litigious content, UTOPIE may take any necessary measures to remove such content or prevent access thereto. UTOPIE shall inform the Customer of such action. In the event of an amicable claim or formal notice from a third party addressed to UTOPIE, which considers that the content is unlawful or causes prejudice to it, UTOPIE shall inform the Customer without delay. If the Customer or UTOPIE fails to remove the Content in dispute - due to the Customer's refusal or silence - the Customer shall hold UTOPIE harmless from any recourse and award of damages to which UTOPIE may be exposed as a result of such claim. However, notwithstanding the foregoing, UTOPIE may take any useful measure to remove access to the disputed content or to make access impossible, if the content appears to be manifestly unlawful, and shall inform the Customer thereof. In the latter case, UTOPIE will inform the Customer as soon as possible. The suspension or interruption of the content for the reasons mentioned above shall not entitle the Client to any compensation from UTOPIE. Furthermore, the Customer shall remain liable to UTOPIE for the full amount of the agreed price during the entire period of suspension or interruption.
UTOPIE shall perform its contractual obligations with all possible care as is customary in its profession. UTOPIE is bound by an obligation of means and will not be held responsible for any delay in the execution of the aforementioned services. In addition, UTOPIE shall not be held liable for any careless application or non-application of the advice provided in the context of the assistance or advice not provided by UTOPIE itself.
In no event shall UTOPIE be liable for any third party or indirect damages such as, but not limited to, operating losses, commercial damages, loss of customers, loss of orders, commercial disturbances of any kind, loss of profit, or damage to brand image. Except in the case of infringement proceedings, any action brought against the Customer by a third party constitutes indirect damage and consequently does not entitle the Customer to compensation.
If UTOPIE's liability under this Agreement is recognized by a final decision of a competent court, the compensation that may be claimed from UTOPIE shall be expressly limited to the amount of the fee received by UTOPIE for the SaaS service for the twelve (12) month period in progress at the time the damage occurred.
It is expressly agreed between the Parties, and accepted by the Customer, that the provisions of this clause shall continue to apply even in the event of termination of this Agreement by a final court decision. The present stipulations establish a distribution of risks between UTOPIE and the Customer. The price reflects this allocation as well as the limitation of liability described.
The Client is informed and expressly accepts that, in accordance with applicable legal provisions:
- Precision Systems Software Packages include technical devices (cookies or other technologies) which, in particular, during an Internet connection, and for the software packages concerned, allow the Client via a web service, either automatically or, where applicable, at UTOPIE's initiative, to send UTOPIE information on the Client's identification (IP address),
The information obtained by UTOPIE through these technical devices may also be used by UTOPIE in the fight against counterfeiting, to identify and prevent any illegal or non-compliant use of the software packages concerned.
The Parties shall not be liable if the non-performance by either Party of all or any of its obligations is due to force majeure, in accordance with Articles 268 and 269 of the Dahir on Obligations and Contracts.
In the first instance, force majeure shall suspend the performance of the Contract and the Parties shall meet to determine how to continue their relations. If the cases of force majeure last for more than one (1) month, the Contract shall be terminated automatically, unless otherwise agreed by the Parties.
The following are expressly considered as cases of force majeure or fortuitous events, in addition to those usually retained by the jurisprudence of the Moroccan Courts and Tribunals: blockage, disruption or congestion of the telecommunication networks, poor quality of electric current, blockage of means of transport or supply for any reason whatsoever, bad weather, epidemics, earthquakes, fires, storms, floods, water damage, governmental or legal restrictions, as well as legal or regulatory changes in the forms of marketing.
In the event that the Customer wishes to terminate all or part of the Contract during the term, the Customer shall pay to UTOPIE, on a lump sum basis, no later than the date of expiry of the Contract, a final and definitive financial compensation corresponding to the amounts remaining to be paid. In addition to this compensation, UTOPIE reserves the right to invoice the Customer for costs related to the interruption of the service, and to the migration and/or recovery of data.18.2. Termination for default
In any event, all of the aforementioned cases of termination imply that the Customer is no longer entitled to access the SaaS service. The termination, or the end for any reason whatsoever, of this Agreement does not give rise to the reimbursement of sums collected by UTOPIE.
The Parties undertake to comply with all the provisions of Law 09-08. In particular, the Parties undertake not to use the personal data communicated by the other Party or to which they have had access in the context of the Agreement, for any purpose other than that provided for in the Agreement, and not to reveal such data to third parties.
Notwithstanding the foregoing, the Client hereby expressly and unequivocally authorizes UTOPIE to transfer its personal data to other legal entities affiliated with UTOPIE, as well as to legal entities affiliated with UTOPIE located in a foreign State, provided that such State ensures an adequate level of protection of the privacy, freedoms and fundamental rights of individuals with respect to the processing of personal data, when UTOPIE deems it necessary, in particular, for the purpose of properly managing the relationship between the Client and UTOPIE.
The Parties undertake to protect the personal data to which they have access in the context of their relationship and to prevent its alteration, loss, processing or unauthorized access.
At the end of the contractual relationship, each Party undertakes to return to the other Party all personal data that it has processed, and to destroy all copies of the data in its possession.
The Parties may, pursuant to this Agreement, have access to confidential information of the other Party. Confidential information includes the terms and prices of this Agreement, the SaaS and any other information indicated as such. Confidential information does not include information that, through no fault of its own, is in the public domain; information that was in the possession of the receiving Party prior to its disclosure, without having been received from the other Party; information that is communicated to the Parties by third parties, without condition of confidentiality; and information that each Party develops independently.
The Party to whom confidential information is communicated shall maintain the confidentiality of such information with no less care than it takes to maintain its own confidential information, and shall not communicate or disclose such information to third parties except with the prior written consent of the other Party or to the extent required by law. The Parties agree to take all reasonable steps to ensure that Confidential Information is not disclosed to their employees or contractors in violation of this Agreement. The terms of this obligation shall be valid for the duration of this Agreement and for two (2) years following its termination. All documents communicated by UTOPIE under this document will remain its exclusive property and will be returned to it upon request.20.2. Waiver
The fact that one of the Parties does not avail itself of a breach by the other Party of any of the obligations referred to herein shall not be construed as a waiver of the obligation in question for the future. The Customer irrevocably waives any demand, claim, right or action against UTOPIE relating to the performance of this contract and which would be formulated more than twelve (12) months after the event giving rise to the claim, and therefore irrevocably waives the right to bring any action before any court on this basis against UTOPIE or any of the companies of the group to which it belongs.20.3. Assignment of the Agreement
The Contract between the Customer and UTOPIE is concluded intuitu personae. Consequently, the Client's rights under the Agreement may not be assigned, sub-licensed, sold or otherwise transferred by the Client, except with the prior written consent of UTOPIE.20.4. Entirety
The Agreement expresses the entirety of the obligations of the Parties.
In the event of any difficulty of interpretation between any of the headings appearing at the head of the clauses and any of the clauses, the headings shall be declared non-existent.
No general or specific condition appearing in the documents sent or delivered by the Parties shall be incorporated into the Contract, with the exception of additional orders from the Client accepted by UTOPIE.
Unless otherwise specifically stipulated, the Contract may only be modified by an amendment duly signed by the persons authorized or mandated by the Client and UTOPIE.20.5. Nullity
If one or more of the provisions of the Agreement are held to be invalid or declared as such pursuant to a law, a regulation or following a final decision of a competent court, the other provisions shall retain all their force and scope.20.6. Commercial reference
UTOPIE may use the Customer's name in the promotion of the Software Package.20.7. Notification
All notifications, to be valid, shall be made to the address communicated at the beginning of the commercial relationship under this Agreement, by registered letter with acknowledgement of receipt.
The signatories of the Contract are deemed competent to represent the Parties.21. LAW AND JURISDICTION
The Contract shall be governed by Moroccan law.
In the event of a dispute and after an attempt at an amicable procedure lasting thirty (30) days and failing to reach an agreement, jurisdiction is expressly assigned to the Commercial Court of Casablanca notwithstanding multiple defendants or third party claims, including for proceedings on request or in emergency situations. In the event of opposition by the Customer to a request for an order to pay, jurisdiction is also expressly attributed to the Commercial Court of Casablanca.