General Terms of Transaction
The Service, including the online Platform, is run and published by SOFTCORNER, a French société par actions simplifiée (SAS) having share capital of €11,916, registered with Paris Trade and Companies Registry under number B 800 643 629, whose registered office is located at 11 rue de Provence 75009 Paris, France. These General Terms of Transaction (hereinafter the "GTT") must be accepted in advance by any Company wishing to gain Verified Trader Status in order to sell or purchase software program licences via the Platform.
In addition to the terms and expressions defined in the GTU, the following terms and expressions hereinafter beginning with capital letters, whether used in the singular or the plural form, shall have the meanings set out herein below.
Buyer: means a Verified Trader which publishes a Purchase Request or a reply to a Sale Offer relating to Licences on the Platform.
Request for Proposal: means the advertisement published by a Trader on the Platform and by which he announces an intention to purchase Licenses.
Purchase Order: means either the Proposal signed by the Buyer or the order form that can be issued by the Buyer in return for the Proposal and in order to validate it.
Commission: means the amount paid to SOFTCORNER following a transaction in consideration for the Service, when a Transaction is carried out. The Commission is included in the Transaction Price and is paid by the Seller.
Agreement: means jointly these GTT and the GTU previously accepted by the Trader, and which govern its use of the Service.
Licences Sales Agreement: means the agreement directly concluded between the Buyer and the Seller to carry out a Transaction. The Licences Sale Agreement complies with the template contained in the schedule appended to these GTT.
Trader Account: means the Trader's personal environment on the Platform, opened by SOFTCORNER in accordance with the terms and conditions hereof. Trader Accounts enable Traders to negotiate and conclude Transactions and in particular to grant permissions to several Users.
Transaction Account: means the account opened by SOFTCORNER with a bank or a financial institution, on behalf of a Trader, via which the funds relating to transactions transit through. The contractual terms and conditions of the secure payment provider are attached and form part of these GTT.
Proposal: refers to the summary of the Transaction that is issued on the Platform by SOFTCORNER in the name and on behalf of the Seller at the end of the possible negotiation of the Transaction Price between the Seller and the Buyer. To conclude the Transaction, this Proposal must be confirmed by the Buyer by simple signature or by issuing his own Purchase Order.
Documents: means all proof justifying the existence, outlines and features of a Licence, including proof of the Seller's initial purchase, all contractual documents establishing each Licence (purchase orders, certificates, licence agreements and riders, master agreement, etc.), the version of the Software Licence (maintenance agreement or proof of upgrades), terms, conditions and limits of use (metrics, volumetrics, etc.), and all documents tracing any and all variations to the scope of the user rights attached to the Licence (discussions with the Publisher, etc.).
Publisher: means the individual who or legal entity which holds intellectual property rights over a Software Program.
Affiliated Entities: refers to all entities in France and abroad:
(i) controlled by the Company that meets one of the following criteria: the Company and one of its affiliated entities, more than 30%;
- management is controlled by the Company or any other affiliated entity of the Company;
- company included in the scope of consolidation of the Company or any other affiliated entity of the Company.
(ii) with the express agreement of the Company, in which the Company holds a participation and who have expressly requested to benefit from the Contract.
Day: means a calendar day.
License Pack: means the electronic envelope, the receipt of which is stamped, signed and electronically sealed by the Buyer, at the end of the Transaction. It contains the Promise of Sale Pack, the Promise of Purchase Pack, the Proposal, the Purchase Order and the Invoice.
Sale Offer: means the advertisement published on the Platform by a Seller, in response or not to a Request for Proposal. Depending on its level of completeness, a Sales Offer may have a Presale or a Complete status. Only the Complete status allows the finalization of a Transaction.
Complete Offer: means an Offer of Sale for which the Seller has provided under his guarantee an exhaustive description as well as all Documents in his possession fully describing the Licenses. The Documents are uploaded by the Seller on the Platform, the so-called Selling Pack being the subject of a secure digital preservation with electronic certificate ensuring their integrity. Any Complete Offer binds the Seller firmly and irrevocably.
Presale Offer: means a Sale Offer whose description by the Seller is not yet completed by the Documents.
Purchase Option: refers to the proposal for the purchase of Licenses transmitted via the Platform by a Buyer candidate in response to a Sale Offer. The Purchase Option includes a Quantity and a Transaction Price.
Due Diligence Pack: refers to all the documentation generated by SOFTCORNER by anonymization of the Selling Pack. All information, data or references allowing the direct or indirect identification of the Seller are electronically anonymised, all other information is kept.
License: means the rights of use granted in a generic or specific way, directly or indirectly, by a Publisher to a licensed client on a Software accessible on physical media or in a dematerialized manner in accordance with a license agreement. For the purposes hereof, the Licenses meet the criteria for eligibility for the secondary market, and in particular, benefit from the exhaustion of the Publisher's distribution rights in Europe.
Selling Pack: means the electronic envelope, timestamped signed and electronically sealed by the Seller during the validation of the "Complete Offer" status of its Sale Offer. This envelope contains: (i) the product sheet selected by the Seller; (ii) the specific description given by the Seller on his licenses; (iii) the Documents; (iv) the uninstallation commitment, a model of which is appended to these GTT, completed and signed by the Seller.
Promise of Sale Pack: means the electronic envelope, stamped, signed and sealed electronically by the Seller, containing the Selling Pack and the information resulting from the negotiations with the Buyer (Transaction Price and number of Licenses sold). The validation of the Promise of Sale Pack by the Seller constitutes a firm and definitive commitment to sell the asset identified in the Selling Pack under the conditions arising from the negotiations between Buyer and Seller.
Promise of Purchase Pack: means the electronic envelope, stamped, signed and electronically sealed by the Buyer, containing the Due Diligence Pack and the information resulting from negotiations with the Seller (Transaction Price and number of Licenses sold). The validation of the Buyer's Promise of Purchase Pack constitutes a firm and definitive commitment to purchase the asset identified in the Due Diligence Pack in the conditions resulting from the negotiations.
Sale Offer Price: means the price set by the Seller in his/her Sale Offer, including the Seller Price and SOFTCORNER's Commission. It may be amended during the course of negotiations between the Buyer and the Seller leading to an agreement on a Transaction Price.
Transaction Price: means the final price determined at the conclusion of the negotiations between the Seller and the Buyer, and which will be paid by the Buyer as part of the Transaction. The Transaction Price includes the Seller Price and the SOFTCORNER Commission.
Seller Price: means the amount paid to the Seller as part of a Transaction, corresponding to the Transaction Price minus the SOFTCORNER Commission.
Sales Process: means all the steps involved in a Transaction on the Platform described in Article 6 hereof.
Service: means the online service published by SOFTCORNER including the Platform, allowing Traders to perform Transactions.
Company: means the legal entity in whose name and on whose behalf the User acts.
Transaction: refers to the operation of buying or selling a License through the Platform. A Transaction implies the acceptance by the Buyer and the Seller of these GTT.
Validation: designates the Validation operation of a pack by affixing an electronic signature. All validated packs are electronically sealed, timestamped and electronically archived for a period of ten (10) years.
Seller: means a Trader, posting a Sale Offer or responding to a Request for Proposal. The Verified Seller entitlement is required to enable a Vendor to finalize a Transaction.
Trader: means the Company having accepted the GTU, and the present GTT, and having identified itself via an identification form. This status is required to finalize a Transaction as a Seller or Buyer. To complete a Transaction as a Seller, this status must be completed with a Verified Seller entitlement.
Verified Seller: refers to the clearance obtained by a Trader who has completed the SOFTCORNER verification process. This Status allows him to use all the features of the Platform, including finalizing a Transaction as a Seller.
The purpose of the GTT is to specify the conditions under which Traders use the Service and enter into License Transactions as Vendors and / or Buyers.
Only a User likely to engage his Company, can accept the present GTT and thus acquire an authorization "Owner". The acceptance of the CGT gives mandate to SOFTCORNER to invoice and cash in the name and on behalf of the Seller the prices of Transactions made via the Platform and paid by the Buyer, and to keep the Transaction Documents as communicated by the Seller, if any, under the conditions hereof.
3. ACCEPTATION DES CONDITIONS GENERALES DE TRANSACTION
The Company willing to reach the Trader Status provides SOFTCORNER with the following information as part of its registration process:
1. concerning the Company:
- the company name
- the type of organization
- the address of the head office
- the intra-community VAT number
- a contact email address.
- his name and first name
- his contact email address
2. concerning the legal representative or authorized representative:
- his nationality
- date of birth
- his address
- his country of residence
The Company willing to reach the Trader's Status also accepts, in the context of these GTT, the general terms and conditions of the secure payment provider, listed in the appendix to this document and of which they form an integral part. Therefore, only a User who is the legal representative of the Company or with a delegation of authority to that effect may accept these presents.
With the exception of listed companies or operating on a regulated market, the Company willing to obtain the Verified Seller authorization undertakes to provide SOFTCORNER with the following documents as part of its verification process:
- Articles of Association
- recent extract from the commercial registration
- Law governing the formation and operation of the Company
- bank account statement on behalf of the Company
- proof of identity of the officer or of the person empowered to bind the Company in the context of the present
- declaration of all the economic beneficiaries holding more than 10% of the capital
For companies listed or operating on a regulated market, a verification process is conducted on a case-by-case basis in collaboration with the Company and SOFTCORNER.
SOFTCORNER reserves the right to refuse the access of a Company to the status of Trader on a discretionary basis, particularly if (i) SOFTCORNER considers that the User is not the representative or the employee of a Company having the status of trader at meaning of Article L. 121-1 of the Commercial Code; (ii) the request originates from an individual; (iii) the Company presents a clear risk of non-compliance with the requirement of lawful possession of Licenses or unreliability; (iv) certain information provided by the User is incorrect, fraudulent, falsified or questionable.
The final confirmation of Verified Seller's status is subject to the confirmation of SOFTCORNER and is only effective as of confirmation online and by email, by SOFTCORNER.
By accepting the CGT and requesting the Verified Seller authorization, the Trader further authorizes SOFTCORNER to open a Transaction Account in the name and on behalf of the Trader at the bank chosen by SOFTCORNER, for the sole purpose of executing the payments related to Transactions. For this purpose, the Trader gives mandate to SOFTCORNER to open and manage the Transaction Account opened on his behalf as part of the Sales Process. For all intents and purposes it is specified that the Trader expressly waives the right to benefit from the sums (interest or other remuneration possibly generated by the immobilization of the amounts) on his Trading Account.
4. DESCRIPTION OF THE SERVICE
The Service allows the meeting of the wills, at the end of the stages of the Sales Process on the Platform, between a Seller and a Buyer, by Traders who have previously issued Requests for Proposal and Sale Offers within the framework of the GTU.
The parties acknowledge that they engage in e-commerce within the meaning of Law No. 2004-575 of June 21st 2004 on confidence in the digital economy. That is why it is advised to the Seller to adopt on the Platform a behavior compatible with the obligations governing the formation of the contracts in electronic form (articles 1369-1 and following of the civil code, article 19 of the law n ° 2004-575 of June 21st 2004).
Offers must be firm and accurate, on the thing sold and the agreed price. The Sales Process allows (i) to first describe the Licenses that are the subject of a Sale Offer or a Request for Proposal; (ii) to document the Licenses that have been the subject of a Complete Sale Offer by the Download on the Platform of the Documents, and (iii) conclude and secure the Transaction via the Platform.
Thus, the Service subject to these GTT allows a Company to acquire the Trader's Status in order to enter into Transactions of Licences, as a Buyer and / or subject to obtaining Verified Seller's authorization, as a Seller, by responding to the Sale Offer or Request for Proposal published on the Platform.
The Platform is accessible at www.SOFTCORNER.eu or any address substituted by SOFTCORNER, and describes the functioning of the Platform. The Trader is obliged to use the Platform in accordance with the GTU and GTT, according to its purpose, and within the limits stipulated herein.
Transactions made by the Traders are imperatively and exclusively subject to these GTT, as well as to the Licences Sale Agreement directly concluded between Buyer and Seller, and follow the Sales Process stipulated below. By validating the present GTT, Buyers and Sellers agree to use Licences Sale Agreement attached and to strictly follow the Sales Process of the Platform attached.
The Sales Process is anonymous until the establishment of the Proposal. However, it is open to Sellers and Buyers who acquire the Trader status to indicate lists of contractors that they refuse (for example in case of competition or internal prerequisites to the Company). In any case, the Transactions are final and irreversible.
The Company having, through a User thus acquiring the level of authorization "Owner", validated the present CGT and opened his Trader Account, can define Additional Users according to two (2) profile levels ("Basic" or "Admin" of which the authorizations are described on the Platform, being reminded that legal representative Users of the Company or benefiting from a delegation of power or an Admin authorization delivered by the "Owner" User for this purpose, can validate an Online Transaction on behalf of the Trader).
The Owner User may also send invitations to Starter Account Users of his Company to join the Trader Account, according to the authorizations he assigns to them. It is the responsibility of the User "Owner" to carefully check the Users he invites and in particular to verify their membership of his Company or any authorized partner of his Company (eg intermediary agent). In any case, the definition of profiles and associated authorizations is the exclusive responsibility of the Company (Seller or Buyer) on its Trader Account.
6. SALES PROCESS
6.1 Obligations of the Seller
The Seller is solely responsible for the Sales Offers it publishes on the Platform. The Seller who publishes an offer or makes a Transaction agrees to use the License Sales Contract attached to conclude this Transaction with the Buyer. In this context, the Seller:
- Authorizes SOFTCORNER to collect the Transaction Price on its Trading Account, on its name and on its behalf, in accordance with the Sales Process stipulated in this article and within the framework of a mandate specifically granted to SOFTCORNER by acceptance of these presents;
- Authorizes SOFTCORNER to order payment of the Seller Price from Transaction Account to its current bank account;
- Certify, as part of a Sale Offer with « Complete » status, that such Licenses and Software in question are available immediately or on the date stated in the Sale Offer;
- Certifies that these Licenses subject to a Sale Offer respect the following cumulative eligibility conditions:
- Licenses that are the subject of a Sale Offer have a lawful and legitimate origin (in the sense that the rights of use have been legitimately obtained from the Publisher or from a previous salesman answering this requirement himself) ;
- Licenses are legally owned (in the sense that the Seller has complied at all times with the licensing terms by which he acquired and used the Software);
- Licenses are characterized by "unlimited" term or at least for the duration of the copyright applicable to the Software;
- Licenses were previously acquired by the Seller in the European Economic Area;
- The Licenses have been acquired by the Seller against the payment of a lump sum;
- Licenses are permanently unused and uninstalled by Seller so that it does not retain any of the transferred rights of use or the affected Software.
Any Sale Offer, containing Licenses that do not meet these criteria, is insusceptible to generate a Transaction and may be removed by SOFTCORNER without notice or compensation for the Trader concerned as soon as it appears or is reported to SOFTCORNER the non-compliant nature of published Sale offer.
As part of the validation of the "Complete Offer" status of its Sale Offer, Seller is obliged to upload on the Platform, using the fields provided for this purpose in his offer form, the digital copies of the Documents. These include, for information only and without prejudice to the evidence that may be provided Software by Software or License by License:
- Proof of purchase of Licenses offered for sale (invoices, etc.);
- Individual and endorsement contracts concluded by the Seller with the Publisher, the Software distributor or a previous reseller;
- All other contractual or legal documents of the Publishers for the Software in question, including any exchange between the Vendor and the Publisher to clarify or specify the scope of the rights included in the License, the metrics used to measure their use, the technical terms of installation and operation, the limitations and exclusions of use, without this list being limiting.
SOFTCORNER informs the Traders that the meeting of these elements is essential to characterize the object of the Transaction envisaged between the Seller and the Buyer, the Seller vouching for the existence of the Software and associated Licenses.
The Seller will, however, have the option, in the Documents to be transmitted, to conceal the information he would like to keep confidential (including the prices initially paid by him, his data, its industrial context, etc.) under strict and cumulative conditions. (i) the concealed items must have no impact on the Buyer's full understanding of all the rights of use of the Licenses, and (ii) the Seller warrants to the Buyer a access to the original, unobtrusive Documents in the event of an audit conducted by a Publisher, in particular.
Traders recognize that the completeness, accuracy, completeness of the Licensing Documents and their responsiveness in the negotiations are a prerequisite to the timeliness of the Transactions. It is recommended that the Seller documents the Licenses it offers for sale as quickly and accurately as possible on sale, in order to qualify its offer of "Complete".
Any Sale Offer with "Complete" status, declared as such by the Seller during the Validation by him of the Selling Pack, is a firm commitment to: (i) the completeness, precision and accuracy of the information communicated in the offer creation form; (ii) the completeness of the documentation transmitted; (iii) the availability of licenses for sale; (iv) the uninstallation and termination of any use of the licenses, which the Seller acknowledges. During this validation, it is up to the Seller to establish the reality and limitations of the Licenses, as well as the traceability of the rights of use between him and the Software Publisher. The Documents provided by the Seller in the Selling Pack must make it possible to precisely define the thing sold and its origin.
The Transaction Price and the number of licenses sold as established at the end of the negotiations, associated with the Selling Pack, form the Promise of Sale Pack. The Validation by the Seller of the Promise of Sale Pack constitutes for him a firm and final unilateral promise of sale.
In the case of a Sale Offer, and in order to characterize the Licenses, the Seller undertakes to provide the following information precisely via the form provided for this purpose:
- Name of the Software from which he wishes to transfer Licenses;
- Product reference according to the typology of Publishers;
- Detailed technical characteristics;
- Nature and geographical extent of the rights of use;
- Applicable metrics (named or concurrent users, volumes, etc.);
- As well as any additional information that may have an impact on the scope of the rights granted or the operating procedures of the Software (options, environment, etc.), particularly in the case of non-generic complex licenses.
When making a Sale Offer, the Seller informs the Sale Offer Price of the Licenses he wishes to sell.
In case of conclusion of a Transaction, on the Platform, and after the validation by the Seller of the Promise of Sale Pack, the License Sales Contract comes into effect and the Seller is bound to perform its obligations in accordance with this. The Seller warrants to the Buyer the sincerity of the Documents and their strict compliance with the Licenses transferred, as well as the final removal to which he is bound to proceed for the Software concerned by the Licenses assigned.
The Seller is informed that any retention or use of all or part of the sold Licenses would infringe the rights acquired by the Buyer and would constitute a counterfeit use of the related Publisher’s Software, of which the Seller would be solely responsible.
Once the License Sales Contract has been concluded between the Buyer and the Seller, and notwithstanding the archiving role proposed by SOFTCORNER in accordance with Article 8 below, the Seller must keep all the original Documents corresponding to the Licenses transferred, under conditions that guarantee its integrity for a period of ten (10) years, and undertakes to communicate them to SOFTCORNER and / or the Buyer on first request, in particular in case of dispute related to the nature or scope of the assigned rights.
6.2 Obligations of the Buyer
The Buyer is solely responsible for the Requests for Proposal that he publishes on the Platform.
The Buyer who makes a Transaction agrees to use the License Sales Contract set out in the appendix to conclude this Transaction with the Seller. In this context, the Buyer authorizes SOFTCORNER to order the payment of the Seller Price to the Seller and the Commission to SOFTCORNER through its Transaction Account as detailed below.
In the case of a Request for Proposal, the Buyer undertakes to specify the name of the Software he wishes to acquire, their product references according to the typology of the Publishers, their detailed technical characteristics, as well as any additional information that may have an impact on the scope of the desired rights or the operating conditions of the Software (options, environment, etc.). He will also specify if he also needs to have access to the executables of the Software.
At the end of the negotiations, if: (i) an agreement between the Seller and the Buyer is obtained on the Transaction Price and the number of Licenses, and if (ii) the Sale Offer has the "Complete" status, SOFTCORNER then makes the Due Diligence Pack available to the Buyer.
Access to the Due Diligence Pack allows the Buye to control the entirety of the Documents it will receive at the end of the Transaction. SOFTCORNER reminds the Buyer that before the final conclusion of any Transaction it is the responsibility of the latter, to verify at this stage (i) the adequacy of the Software and Licenses that he wishes to acquire with his needs and its environment, as well as (ii) the compliance of the Licenses with the Documents and Descriptions transmitted by the Seller.
The Transaction Price and the number of Licenses sold as established at the end of the negotiations, associated with the corresponding Due Diligence Pack, form the Promise of Purchase Pack. The Validation by the Buyer of the Promise of Purchase Pack constitutes for him a unilateral firm and final promise of purchase.
As a third party to the Transaction, SOFTCORNER makes no warranties or undertakings regarding the Software's compliance with the Buyer's needs or the compliance of the Licenses with Seller's Furnished Documents.
More generally, the obligations and guarantees payable by the Buyer to the Seller are stipulated in the License Sales Agreement.
6.3 Matching and negotiations between Buyer and Seller
Seller and Buyer consult the Platform for ad identification purposes that may meet their needs. When a candidate Buyer or Seller responds to one of the offers on the Platform, an anonymous negotiation is made between the Seller and the Buyer, relating to the Licenses, their quantities, characteristics and prices. Negotiations are possible between Traders. Transactions, on the other hand, are only possible between a Seller who has the Verified Seller entitlement and a Buyer who has at least one Trader status.
In case of plurality of responses to a Sale Offer, the Seller freely decides on the Purchase Option on which he is pursuing the negotiation, the other Purchase Option(s) being declined.
In case of plurality of replies to a Request for Proposal, the Buyer freely decides the Sale Offer on which he is pursuing the negotiation, the other Sale Offer(s) being declined.
Negotiations continue until Seller and Buyer confirm the match of their needs and the agreed Transaction Price.
By confirming this matching including the Transaction Price and the number of Licenses sold, by the Validation of its Promise of Sale Pack, the Seller undertakes to sell the Licenses to the Buyer concerned under the agreed conditions.
By confirming this matching including the Transaction Price and the number of Licenses sold, and its acceptance of the Documents after control of the Due Diligence Pack, by the Validation of its Promise of Purchase Pack, the Buyer undertakes to acquire the Licenses Seller concerned, under the agreed conditions.
At the meeting of the following conditions: (i) Validation of the Promise of Sale Pack by the Seller and (ii) Validation of the Promise of Purchase Pack by the Buyer, the agreement between the Buyer and the Seller on the Licenses, their quantity and the Transaction Price fixed according to the financial conditions agreed between them in accordance with the stipulations of the article "financial conditions" below, is then perfect. At this stage, the Sale Offer is removed from the Platform as well as the eventual Request for Proposal concerned.
6.4 Conclusion of the Licence Sale Agreement
SOFTCORNER generates the Proposal in the name and on behalf of the Seller and makes it available to Traders via the Platform. The Proposal summarizes the characteristics of the Licenses object of the Transaction to be concluded, as well as the unique references (hashes) to identify the different packs (Selling Pack, Promise of Sale Pack, Promise of Purchase Pack), allowing the Buyer to check the purchased thing.
The Online Validation of the Proposal is worth a firm order by the Buyer. Alternatively, the Buyer may issue its own Purchase Order if its internal policy imposes one. In this case, the Purchase Order issued by the Buyer must be strictly in accordance with the Proposal, and aim at the Seller as a beneficiary.
The Sales Contract is attached to the present GTT and to the Proposal. It governs the Proposal and / or, if applicable, the Purchase Order enabling the Buyer to confirm the purchase of the Software Licences negotiated with the Seller, to the exclusion of any other contractual document, notably the conditions of the Buyer or the Seller.
From the confirmation of the online Proposal or after validation of the conformity of the Purchase Order sent by the Buyer to SOFTCORNER, the Transaction is perfect and definitive.
As a trusted third party operator of the Platform, SOFTCORNER (i) automatically receives the Buyer's Purchase Order summarizing the agreement made expressly to the Seller as the beneficiary, (ii) is the addressee of the billing and collection mandate from the Seller, (iii) is the recipient of the sequestration mandate of the funds paid by the Buyer and (iii) is the recipient of the secured Document retention mandate, if applicable.
The Sales Process is appended to these GTT, according to the following milestones that Traders pledge to follow:
- As from the confirmation of the Proposal by the Buyer, SOFTCORNER as billing agent of the Seller, issues, in the name and on behalf of the Seller, and transmits to the Buyer an invoice indicating the Transaction Price as well as the details of the Transaction Account;
- The Buyer orders the payment of funds corresponding to the Transaction Price on the Transaction Account upon receipt of the invoice;
- Upon receipt of funds on the Transaction Account, SOFTCORNER makes the License Pack including all Documents available to the Buyer via the Platform. From this date, the latter has fifteen (15) calendar days to review the License Pack and in particular to ensure compliance between the Due Diligence Pack and the original Selling Pack;
- By the end of the aforementioned fifteen (15) day period, if the Buyer has remained silent, SOFTCORNER shall automatically order from the Transaction Account (i) the final transfer of the Seller Price to the Seller on his current account and (ii) transfer from the Commission to SOFTCORNER;
- SOFTCORNER sends the Seller the invoice for the Commission
In case of non-compliance between the Due Diligence Pack and the Selling Pack received by the Buyer, the latter reports it on his Trader Account and implements the procedure of verification and amicable conciliation provided for in the Licences Sales Agreement.
6.5 SOFTCORNER insurance
SOFTCORNER has suscribed a "service provider civil liability" insurance policy with AXA Assurances IARD Mutuelles in order to allow the Trader to benefit from insurance cover in the context of the Sales made by them via the Platform, under the conditions laid down by the policy.
This insurance automatically covers the Seller in the event of a finalized transaction, and subject to the conditions set out in the contract, as of the acceptance by the Buyer of the Proposal, by online Validation or by uploading of his own Purchase Order.
- The details of the guarantees subscribed (including nature, limits, deductibles, etc.) and the special conditions of coverage of the AXA policy subscribed by SOFTCORNER are available here.
- The applicable AXA policy terms and conditions are also available here.
- The operation of guarantees over time is available here.
- As an indication, and without such precision adding or subtracting from the specific or general conditions of the AXA policy, the Trader's attention is drawn to the geographic scope of the policy and the list of covered countries accessible here.
The Trader declares to have fully read it by accepting the present GTT.
SOFTCORNER can not be held responsible in case of non application of the AXA policy to any damage whatsoever.
7. FINANCIAL CONDITIONS
The Commission is invoiced to the Company as soon as it enters into a Sales Agreement as a Seller via the Service.
The rate of the Commission is set at 15% of the Transaction Price, without commitment of duration or volume requirement, for all sales made by the Company.
In the event of a subscription to the "Private market" offer, for 10 or more Affiliated Entities, with a commitment of one year, and for the duration of this subscription, the Commission's rate will be reduced to 12 % for all sales made by each Affiliated Entity of the Company.
As part of the "Private market" offer, transactions made between Affiliated Entities will not be billed by the Commission.
8. TRUSTED THIRD PARTY
The Service includes the intervention of SOFTCORNER as publisher of the Service and trusted third party. As such, SOFTCORNER assures as agent (i) the invoicing of the Transactions on behalf of the Seller, (ii) the dematerialized and secure payment via the secure payment provider, and (iii) the preservation of the Documents in conditions ensuring their integrity, in case of complaint.
In any event, SOFTCORNER is a third party to Software Transactions, which are entered into solely by the Traders' Companies by mandatory and automatic application of the Licences Sales Agreement.
It is recalled for all intents and purposes that within the terms hereof, the term "purchase or sale of" Software "means the purchase or resale, by a Trader, of the Software Licenses via the Service. Under no circumstances may the Service have the purpose or effect of Transactions directly related to the Software as Publisher assets, but only the resale between Companies of the corresponding user licenses previously acquired by the Seller from a Publisher, a distributor approved by the Publisher, or a previous reseller under conditions allowing him to assign the Licenses in accordance with the law in force within the European Union.
In this respect, SOFTCORNER never owns or acquires any of the Licence sold on the Platform, and is therefore in no way reseller thereof. SOFTCORNER is neither an agent of the Seller nor of the Buyer beyond the invoicing and management mandates expressly stipulated herein. SOFTCORNER acts as an intermediation provider and trusted third party in order to structure and secure Transactions and to allow Traders to implement the right of resale they enjoy on the software assets they have.
SOFTCORNER does not itself provide any warranty on the Software (in particular no guarantee of availability, performance or conformity to the needs of the Buyer) and can not be held responsible for any lack of conformity between the described Software Licence. in a Sale Offer or a Request for Proposal and the Software Licence subject to the finalized Transaction, nor any damage caused by the Software, particularly in the event of ineligibility for resale. The warranties are provided by the Seller to the Buyer under the conditions of the Licences Sales Agreement, reproduced in appendix, and are the subject of the contractual documents.
SOFTCORNER also recalls that all exchanges made on the Platform by Users must imperatively be anonymous, within the limit of the Sales Process described above. Any attempt at direct contact before a Transaction on one or more Software Licence has been formed may result in the cancellation of the relevant Trader Account, as well as a claim for damages before the courts competent to compensate for the prejudice suffered by SOFTCORNER or its representatives due to the breach of the obligation of anonymity.
The Trader declares to irrevocably accept the anonymous nature of the pre-contractual talks on the Platform, whether he acts as a Buyer or a Seller. As such, the Trader expressly acknowledges having been fully informed of the essential elements of its use of the Service and the Platform in accordance with the legal pre-contractual information requirements of which Article 19 of Law No. 2004-575 of 21 June 2004. In addition and except in the case of information by him / her of a blacklist under the conditions indicated above, the Trader recognizes that the identity of the contracting partner is absolutely indifferent of his consent to finalize a Transaction on the Platform. The Trader is therefore prohibited from refusing to conclude a Transaction on the grounds of the identity of the Seller or the Buyer, as well as calling into question the existence of the Transaction for this reason, whatever the legal basis used to against the Licences Sales Agreement (voidness, lapse, cancellation, etc.). However, any Trader may stipulate when opening his Trading Account a "black list" of entities with which he does not wish to conclude a Transaction, SOFTCORNER then verifying compliance with this list in the context of the Transactions.
Finally, notwithstanding the obligation for the Companies to keep all items and Documents relating to their purchases / sales for evidence in accordance with common law and obligations including tax, and in particular notwithstanding the obligation for the Buyer to retain the of the License Pack characterizing the Transaction and tracing the origin of the Licenses in order to transmit it in the event of subsequent resale, and the obligation for the Seller to keep the originals of the Documents during the period stipulated herein, SOFTCORNER provides a Service of secure registration of the different packs validated during the transaction (Selling Pack, Promise of sale Pack, Pack Promise of Purchase and License Pack). These are held under digital seal for a period of ten (10) years from the date of the Transaction, and are evidence of the Transaction in case of litigation. By definition, the Documents retained by SOFTCORNER are limited to the only Documents communicated by the Seller at the time of the Transaction during the validation of the Selling Pack. As a merchant and in accordance with Article L. 110-3 of the Commercial Code, the Companies declare to accept without reservation the present agreement of evidence which will apply in their relations with SOFTCORNER, but also in their relations between them.
Finally, in the event of a dispute relating to a Transaction and before any legal dispute, each Trader undertakes to resort to the intervention of SOFTCORNER as a conciliator, or as an expert in case of reconciliation entrusted by Buyer and Seller to a third party conciliator, in accordance with the stipulations of the Licences Sales Agreement, so that SOFTCORNER may produce copies of the Documents entrusted to it in the context of this article, and more generally.
In the event of the legal disappearance of SOFTCORNER (judicial reorganization without resumption of the contracts, liquidation, dissolution), SOFTCORNER will return all the Documents as soon as possible and in a secure manner in accordance with the state of the art, to the Buyers and Sellers whose Transactions are in courses or have been completed.
The GTT come into effect as from their acceptance by the User for an indefinite period, corresponding to the life of his Trader Account until it closes, and apply to all Transactions that he may propose or accept and conclude.
The Trader may terminate the GTT at any time by closing the Trader Account, subject to completing the Sale Process for any ongoing Transaction at the time of the decision (it is recalled that upon acceptance of the Proposal by Online Validation or by upload of his own Purchase Order, the Transaction is formed and the Parties must complete the Sale Process described in Article 6.4). The simple talks that are in progress at the time of termination of the Trader Account are discontinued, under the responsibility of the Trader who closes his Trader Account, which must refrain from any abusive or abrupt termination of the negotiations. The termination of the Trader Account results in the loss of all the entitlements in case of plurality of Users and the closing of the corresponding Transaction Account.
Termination of the GTT does not affect the validity and performance of the GTU and other contractual documents that remain in force, unless the Trader terminates the whole expressly. Failing this, the termination of the GTT only entails the closing of the Trader Account and the corresponding Transaction Account, the loss of the Trader's Status and the consequential faculty to perform Transactions.
10. TERMINATION OF GENERAL TERMS OF TRANSACTION
In the event of termination of the GTT or the Contract, the Trader and therefore the Company he represents, loses the right to make Transactions.
In the event of cancellation of the GTT or of the Contract on the initiative of SOFTCORNER to the Trader's faults. These include cases where the termination would be justified by:
- an identity theft of the Trader when creating the Account or when using it;
- the creation of several Accounts for the same Company;
- the publication of a fraudulent, misleading or unlawful Request for Proposal or Sale Offer;
- an attempt at direct contact between Traders in violation of the anonymity policy defined in the GTT;
- a malicious use of the Platform or, more generally, any attack on the Service offered by SOFTCORNER or its brand image.
The termination of these presents only having effect for the future, the Commission remains due by the Seller to SOFTCORNER in all the cases where a Licences Sale Agreement would be formed on Software Licences following a Sale Offer or Request for Proposal on the Platform made before the effective date of the termination.
It is reminded that the present GTT and their appendices are incorporated in the GTU from their acceptance, all articles remain valid and applicable herein.
APPENDICE 1 : Contrat de vente des licences logicielles
APPENDICE 2 : Conditions Générales d'Utilisation Mangopay
APPENDICE 3 : Template Engagement de desinstallation