These Primo Terms and Conditions of Services form an agreement entered into between the legal entity having subscribed to the services provided by Clutch and the latter, a French sociĂ©tĂ© par actions simplifiĂ©e with a share capital of 14 081,50âŹ, whose registered office is located at 14 rue Beffroy, 92200 Neuilly-sur-Seine, France, registered before the Trade and Company Register of Nanterre under number 919 404 301 (âPrimoâ).
Client and Primo are hereafter individually referred to as a âPartyâ and collectively as the âPartiesâ.
The terms and expressions which first letter is a capital one, in this Agreement, have the meaning defined in this article, used either as singular or plural:
shall mean any Clientâs employee who has access to the Platform and uses the Services.
shall mean the present Primo Terms and Conditions of Services, the Subscription Form(s), their appendices and any future amendments executed between the Parties, excluding all other documents.
shall mean any information communicated (written, orally or by any other mean) directly or indirectly by the Client to Primo prior or after this Agreementâs entry into force including, without limitations, the information related to the Services as well as the operations, processes, plans, know-how, commercial secrets, inventions, techniques, commercial opportunities and activities of the Client.
shall mean the legal entity identified when registering on the Platform, or in the Subscription Form, which benefits from the right to use the Platform.
shall mean the data relating to the Client, the Admins and to the Equipment and Devices, which are processed via the Platform.
shall mean the Clientâs computers, tablets or phones linked to the Platform, the number of which is used to calculate the Fees.
shall mean the Clientâs Devices that are enrolled in the MDM Module of Primo (the status of enrollment being always available on the Platform), the number of which is used to calculate the Fees.
shall mean the sums owed by the Client in order to benefit from the Services.
shall mean the events external to the Parties, unpredictable and unstoppable, as defined by French case law, the following events shall be deemed to constitute a case of Force Majeure (without purporting to be an exhaustive list): war (declared or not); terrorist act; invasion; rebellion; blockade; sabotage or act of vandalism; strike or social dispute, total or partial, external to both Parties; bad weather (in particular flooding, storms and hurricanes); events declared as ânatural disastersâ; zombie invasion; fire; epidemic; transport or supply blockades (particularly energy); failure of electrical energy, heating, air conditioning supplies, of the telecommunication or data transport network; satellite failure.
shall mean the part of the Services provided by Primo on its Platform at no cost for the Client.
shall mean all the additional features and/or services, as defined in the relevant Subscription Form.
shall mean the summary of the Modules ordered by the Client to Primo which determines what Modules the Client is getting access to, for how many Devices, for which duration and at what Fee.
shall mean the period of provision of the Services for each Module subscribed by the Client as set forth in the relevant Subscription Form.
shall mean the webservice, available at app.getprimo.com and through which the Services are provided by Primo.
shall mean the part of the Primo platform which is available to Administrators, which allows them to manage their Equipment, Employees, Connected Applications and more.
shall mean the Deploy and Modules provided by Primo to the Client through the Platform under the conditions defined under this Agreement.
shall mean a software that is not edited by Primo, provided by Primo to the Client, as part of the Services.
shall mean the 14-day period during which the Client can use one of the Module without paying the applicable Subscription.
Primo develops and markets, through its Platform, IT Operations services in the form of:
This Agreement defines the terms and conditions under which Primo will perform the Services.
This Agreement shall enter into force when the Client signs up to the Platform, for an indefinite duration.
For Premium customers, at the end of each Period, the relevant Subscription Form will be automatically renewed for a new contractual period of the same duration as the Period, except in the event of (i) early termination under the conditions defined in Article 14; or (ii) termination of the relevant Subscription Form.
Except if defined otherwise by the Parties, each Period is established on a monthly basis. If the Client chooses to terminate a Subscription Form, such termination will take effect (i) on the last of the on-going month for a termination notification occurring before the fifteenth (15th) of the month; and (ii) on the last day of the following month for a termination notification occurring after the fifteenth (15th) of the month.
The Agreement may be terminated at any, by either Party, by sending a written notification to the other Party provided that no Module is active under an Subscription Form.
Primo grants the Client a right to use the Platform through its Admins for the internal business needs of the Client only, under the conditions and within the limits specified in the Agreement. The right of use is granted on a non-exclusive, non-transferable and non-assignable basis, for the entire world and for the duration of the Agreement.
When first accessing the Platform, the Client will need to provide to Primo the following information: First Name, Name, Role, Company Name, Company Size, Work email address.
As part of his right to use the Platform, the Client undertakes unreservedly not to:
The Platform may include Third-Party Software provided by Primo. Any other Third-Party Software used by the Client in connection with the Platform is the sole responsibility of the Client and it is the Client's responsibility to make any relevant commitments in this respect.
Access to the Platform by the Client will be restricted to Admins only.
As part of the Setup, the Client appoints the Admin, who has the power to create and modify all the Adminsâ accounts. During the performance of the Agreement, the Admin may send a Subscription Form or contact Primo to increase the number of Devices in the relevant Subscription Form. When Devices are added to the number specified in the Subscription, Primo will issue, at the end of the following invoicing period, an adjustment invoice for all of these additional licences, pro rata temporis, in accordance with the rate specified in the Subscription Form.
Each Admin has the right to appoint other Admins, which will have the same abilities on the Platform as the initial Admin. The Client undertakes to ensure that Admins are competent natural persons, familiar with the use of IT tools and informed by the Client of all issues relating to the processing and use of personal data.
In order to access the Platform, may use either (i) an email and a password chosen when accessing the platform for the first time or (ii) a Google login through SSO.
The Client is solely responsible for the security of logins and passwords. In the event of one or more Admin accounts being compromised, the Client undertakes to change the password associated with the compromised account(s) without delay.
Any action carried out via a login belonging to a Admin will be deemed to have been carried out by the Client, unless the Admin has previously deactivated the login concerned. In this context, the Client undertakes to ensure that each of its Admins complies with the terms of the Agreement.
The Client can access the Platform to use the Services, which include in particular: (i)
The Services, as well as associated financial conditions, are described on this page: [âą].
The Services available for the Client are listed in each relevant Subscription Form.
1.1.1 Ordering Equipment
Any orders placed through the Platform are not free of charge. The price for the order of each Equipment is indicated on the Platform but may defer for any delivery outside of France. Prices for any Equipment ordered through the Platform, available through the Platform, are equivalent to the prices offered by the producers of the Equipment, and may not match the best offers and discounts available on the Internet for this Equipment.
The Client will not pay any shipping fees for the delivery of its Equipment. Primo only organises shipping in all European Union and to the United Kingdom. Shipping to any other destination shall be organised by the Client or agreed upon with Primo.
Primo will provide a date for delivery of the Subscription Form which is indicative and subject to full payment of the sums due for any Equipment by the Client to Primo.
Delivery will be deemed to occur once the recipient (Client or Admin on behalf of Client) takes physical possession or control of the Equipment ordered.
The Client (or the Admin on behalf of Client) must notify in writing to Primo any non-conformity or missing Equipment with a copy of any reservations made to the shipping carrier within twenty-four (24) hours from delivery.
Acceptance will occur either (i) if within the above-mentioned 24-hours deadline no claim has been notified to Primo or (ii) the Equipment has been opened by the Client.
1.1.2 Selling & Repairing Equipments
The Client has the possibility to sell and repair its Equipment through the Platform.
In order to sell its Equipment, the Client must contact Primo. Primo will then transfer a list of information regarding the Equipment the Client will need to fill out, for Primo to estimate the selling price of the Equipment.
After estimation, Primo will make an offer to the Client. Upon acceptance, Primo will provide the Client with the necessary label and, if necessary, shipping material to ship the Equipment to the buyer.
Once the buyer has received the Equipment, they will either (i) confirm the estimation, (ii) make a new offer or (iii) send back the Equipment. If the Client does not accept the new offer, they will have to pay for any cost related to the return of the Equipment.
1.1.3 Shipping Equipments
Primo Manage is a full-featured Mobile Device Management module that is based on an open-source MDM by FleetDM (fleetdm.com). Thanks to Primo Manage, you can remotely configure, monitor and manage your Enrolled Devices.
Primo Connected Apps allows you to connect your SaaS providers to Primo to streamline account creation & deletion.
The Fees are indicated in each Subscription Form.
The Fees due to Primo and referred to in this Article are exclusive of tax and do not include any fees (in particular for delivery and travel fees), unless expressly agreed otherwise between the Parties.
1.1.1 Equipment orders
The Client shall pay Primo upon the ordering of any Equipment.
If the Client wishes to sell its Equipment, Primo will pay the Client once (i) the Equipment has been sold and (ii) received by the buyer.
1.1.2 Subscription
The Fees shall be payable upfront monthly, except if expressly stipulated otherwise between the Parties. The Fees shall vary according to the Modules as selected by the Client.
1.1.3 Late payment
In case of rejected payments, the Client will be informed by e-mail of the unpaid sums.
Once informed, the Client shall proceed with the regularisation of the payment within twenty-four (24) hours using the payment means accepted by the Primo.
In the event of non-payment of any sum within the contractual deadline:
Amounts paid by the Client to Primo under the terms of the Agreement remain the property of Primo and are therefore non-refundable, even in the event of termination of the Agreement.
At the end of the Period, and then of each contractual period, Primo may re-evaluate the amount of the prices of the Services and undertakes in this case to communicate its new rates to the Client no later than thirty (30) days before the expiry of the current contractual period.
The Client acknowledges and accepts that it is the Client's responsibility to transmit all Client Data in accordance with the instructions communicated by Primo.
In this regard, Primo cannot be held responsible for any failure in the provision of Services in the event that the Client Data transmitted by the Client is incomplete or erroneous.
Any intervention carried out by Primo due to non-compliant or missing use/and or data may be subject to additional invoicing, based on time spent.
Primo makes a daily backup of Client Data and, in this context, ensures the integrity and conservation of Client Data contained in the Platform.
The Client undertakes to:
Primo shall, while performing its Services:
Unless expressly stipulated otherwise, Primos obligations under the Agreement are obligations of means.
Where applicable, Primo may communicate delivery or completion dates for the Services as well as a date for final delivery or completion.
The deadlines indicated by Primo are indicative deadlines and are in any event subject to the Client's compliance with its obligations, particularly in terms of communicating the relevant information.
Throughout the term of the Agreement, the Client benefits from updates to the Platform which are developed and distributed by Primo.
Consequently, the Client accepts that Primo may, without prior notice and at any time, modify one or more functionalities of the Platform.
Each Party shall undertake towards the other Party to:
The Client acknowledges that the Platform, including any patches, workarounds, updates, upgrades, enhancements and modifications made available to the Client, as well as all trade secrets, copyrights, patents, trademarks, trade names and other intellectual property rights related thereto shall at all times remain the full and exclusive property of Primo and that nothing in this Agreement shall be construed as a transfer of any of these rights to the Client.
The Client acknowledges and accepts that some of the components of the Platform are open-source components.
As part of the Services, the Client may subscribe to a Third Party Software (âŠ)
1.1 Confidential Information
Confidential Information does not include:
Primo undertakes, in its name and in the name of its employees, agents, sub-contractors and Clients, for the duration of this Agreement and for a period of five (5) years after the end of this Agreement:
When this Agreement comes to an end, either because it has reached its term or has been terminated, each Party shall return to the other Party, without delay, all Confidential Information, regardless of format, that it has obtained within the scope of this Agreement. Neither Party shall keep any copies in any format whatsoever, without the express prior written agreement of the Client.
Some data used, gathered and/or processed via the Services may constitute personal data within the meaning of the Regulation on the protection of natural persons about the processing of personal data and on the free movement of such data (hereinafter the âGDPRâ).
Then, the Client, in the conduct of its activities, implements automated processing of personal data within the meaning of Law No. 78-17 of 6 January 1978 on data processing, files and freedoms (hereinafter âLaw No. 78-17â) and the GDPR. It wished to entrust part of the technical aspects (as defined in the Agreement) of these processing operations to Primo, under the conditions defined in the Agreement.
Via the Services, Primo is required to process, on behalf of the Client, certain personal data that may be included in the data.
The Client undertakes within the framework of the execution of the Agreement to:
Primo cannot be held liable for any breach by the Client of applicable legislation except where the law expressly requires otherwise.
In accordance with sections 28 and 32 of the GDPR, related to data processor activities, Primo, as such, undertakes to:
Primo reserves the right to entrust the execution of all or part of the services under this Agreement to one or more subcontractors. Primo will be allowed to change any of its subcontractors provided that they provide the information in writing to the Client seven (7) days in advance to allow the Client to send any observation.
At the end of the Agreement, Primo undertakes, at the Clientâs discretion, to (i) destroy any personal data included in the data, or (ii) return said data to the Client (or to the subcontractor it has designated) according to the procedure set out in the Article 14.3.
The return is accompanied by the destruction of all existing copies in Primoâs information systems. The Client must communicate its will at least ten (10) days before the expiry of the Agreement. Otherwise, Primo will completely delete the personal data included in the data.
Deploy is provided âas isâ and Primo disclaims, to the extent permitted under applicable law, all warranties and representations in relation to Deploy, including without limitation the conformity of the Platform, warranty as to latent defects, infringement warranty, uninterrupted or error-free operation of the Platform, fitness of Deploy for a particular usage or Clientâs requirements or compatibility of Deploy with any other product or software.
The Client undertakes s/he is installing and/or using Deploy at its own risks.
Primo shall not be liable for any damage arising from the use of Deploy.
Primo shall not be liable for any direct or indirect damages, including without limitation (i) any damage resulting from the loss or incorrectness of the data or programs, provision of the hardware, software, service or technology, (ii) loss or damage incurred by Client as a result of third-party claims.
To the fullest extent expressly permitted by law, Primo hereby disclaims the French legal liability for defective products (âresponsabilitĂ© du fait des produits dĂ©fectueuxâ) set for in article 1245 and seq. of the French Civil Code, particularly as regards damage done to any good not used by the Client for private purposes.
Primo is not the direct seller of the Equipment. Insofar as possible, Primo will inform the Client in advance of the warranty conditions applicable to the Equipment.
The seller of the Equipment remains solely responsible for any technical risk that would make it totally or partially impossible to use the Equipment.
In the event of a request from the Client for maintenance of the Equipment, Primo will relay the support requests to the seller. No maintenance operations will be carried out by Primo on the Equipment.
In any event, to the fullest extent permitted by applicable law, Primoâs liability over the whole term of the Modules, for any damages and losses arising under or in connection with the Modules, shall be limited to the total amount the Subscription paid by the Client relating to the corresponding Module during the twelve (12) months preceding the damaging event.
Primo shall not be liable for any indirect damage or loss, incidental, consequential, special, punitive, or exemplary damages, or any loss of profit, loss of data, loss of revenue, loss of business opportunity, non-occurrence of anticipated savings, productivity gains or competitive advantage, business interruption or damages to reputation or image.
Primo shall not be liable for any failure to perform its obligations related to the Modules if such failure is due to any act or omission of Client or any third party.
Client shall assert any claim for breach or non-performance against Primo in connection with a Module within one (1) year after Client first knew or should have known of the underlying facts giving rise to such claim.
1.1.1 For breach
Each Party may, ipso jure and without prejudice to any damages that it reserves the right to claim judicially, terminate the Agreement with immediate effect in the event of a breach by the other Party of one of its essential obligations under the Agreement, and in particular in the event of non-payment of the sums due according to the invoices, if this breach has not been remedied by the defaulting Party within a period of thirty (30) working days from notification of this breach by the other Party, by registered letter with acknowledgement of receipt.
1.1.2 For convenience
Each Party has the right to terminate this Agreement with a thirty (30) day prior notice before the end of the Period.
If the Clientâs Modules include a Third-Party Software (i.e. antivirus software), the Client will either (i) have to terminate the licence according to the third-party terms and conditions or (ii) have to ask the transfer of the licence from Primo, if available.
The Client can also choose to terminate one of the subscribed Modules without terminating the whole Agreement, at the end of the Period of the Module as indicated in the corresponding Subscription Form.
In the event of termination of the Agreement, for whatever reason, the Client must immediately cease to use any element supplied as part of the Services.
Any Service performed and not yet invoiced will be due to Primo.
Any Equipment purchased by the Client as part of the Services will remain its sole property.
Within forty-five (45) days of the expiration or termination of the Agreement, Primo can provide the Client with a copy of all the Client Data available on the Platform.
The Client Data will be made available to the Client for downloading and/or delivered on a physical medium, at Primoâs discretion.
Primo undertakes to provide a complete export of the Client Data on the Platform in a state-of-the-art format. This export of Client Data will include, in particular, the basic data as supplied by the Client during Setup as well as the processing and enrichment of this data during the execution of the Agreement.
Any provision of services and/or export of Client Data, beyond a single export subsequent to the expiry or termination of the Agreement, will be invoiced to the Client in accordance with the quotation drawn up in advance by Primo.
At the end of the reversibility period, Primo will proceed with the complete deletion of the Client Data, with the exception of anonymous statistical data collected by Primo as part of the provision of Services to the Client.
Primo certifies that it has complied with all its obligations relating to labour laws applicable in the country where Services are provided, and in particular, with respect to France, with the provisions of articles L. 8221-1 and seq. of the French Labour Code relating to illegal work, L. 3241-1 and seq. relating to payment of wages, L. 1221-10 and seq. relating to employer obligations, L. 8231-1 and seq. relating to unlawful working practices and L. 8251-1, L. 8252-1 and seq. relating to foreign employees.
The relationship between the Parties is the one of independent and autonomous contractors. This Agreement is solely intended at the purpose defined herein and shall not be construed as entailing any provision or intention to constitute a company and/or clientship, the Parties lacking affectio societatis. No provision of this Agreement shall be deemed as giving power to a Party to conduct the other Partiesâ activities.
The Client accepts to be featured on Primoâs clients reference list. Such acceptance includes being mentioned in press releases or project accounts, and the fact that this Agreement may be used as an example of a mutually beneficial collaboration for marketing purposes.
All notices (formal notice, report, approval or consent) requested or required in application of the provisions of this Agreement must be made in writing and shall be deemed to have been validly given if they are:
Unless otherwise stated in the provisions of this Agreement, time limits are calculated in calendar days. All time limits calculated from a notice shall run from the first attempt at delivery, as evidenced by the postmark.
This Agreement being concluded intuitu personae, the Client is not authorized to transfer all or part of its obligations under the terms of this Agreement, in any way whatsoever, without the express prior written agreement of the Client.
In case a change of control of the Client would occur (the notion of âcontrolâ being understood within the meaning of article L 233-3 of the French Commercial Code), the Client shall inform Primo at least thirty (30) days prior to this change of control actually coming into effect. As of receipt of this notification from the Client, Primo shall be entitled, for a forty-five (45) days period, to terminate this Agreement immediately by sending a registered letter to the Client notifying the termination of this Agreement due to change of control.
Neither Party shall be held liable if the performance of its obligations should be delayed, restricted or made impossible by virtue of a case of Force Majeure
If a case of Force Majeure should occur, the performance of the obligations of each Party shall be suspended. If the Force Majeure should last for more than one (1) month this Agreement may be terminated at the request of the most diligent of the Parties, with neither Party being held liable. Each of the Parties shall bear their own costs that may be incurred as a result of the Force Majeure.
If one or other Party should fail to exercise any one of its rights under the terms of this Agreement whatsoever, this shall not be deemed to be a waiver of that right, such waiver only to be deemed to have been given when expressly declared by the Party in question.
This Agreement constitutes the entirety of the Partiesâ understandings, and thus cancels and replaces every communication, proposals, statements and agreements, written or oral, issued by any of the Parties before or after execution of this Agreement.
The conditions defined in a Subscription Form shall supersede the terms of this Agreement.
If one or more of the provisions of this Agreement should be held to be invalid by a competent court, the remaining provisions shall retain their scope and effect.
The provision that has been held to be invalid shall be replaced by another provision, the scope and meaning of which shall be as close as possible to the scope and meaning of the invalidated provision, but in compliance with applicable legislation and the mutual intent of the Parties.
The Parties expressly accept to submit any dispute related to this Agreement (understood as any dispute related to its negotiation, conclusion, enforcement, cancellation and/or termination) and/or related to the commercial relationships between the Parties and their termination, to the exclusive competence of the Paris Courts, notwithstanding plurality of defendants or warranty claims, and including summary proceedings and ex parte motions.
