General Terms and Conditions of Application Maintenance (TMA)

D.1. Preamble

These General Terms and Conditions of Application Maintenance (TMA) (the “TMA General Terms”) apply to all TMA Services performed by Melis Technology at a Client's request, with the exception of evolutionary maintenance services, which are governed by the General Terms and Conditions of Service.

The TMA General Terms set out the essential conditions under which “Melis Technology” or “Melis” performs the Service agreed with the Client and described, where applicable, in Special Conditions that supplement and form an indivisible whole with the General Terms and Conditions of Service and the TMA General Terms. In the event of any contradiction between them, the Special Conditions shall prevail.

These TMA General Terms exclude any conflicting purchase or order conditions of the Client, whatever their terms, means or dates of communication, even if they appear on a purchase order accepted by Melis, unless such acceptance of the Client's conditions results from express and unequivocal terms written by a duly authorised representative of Melis.

It is in this context that the general terms and conditions of sale for TMA and the arrangements set out below apply.

D.2. Definitions

For the purposes of each Contract, the terms below shall have the meanings set out hereunder, unless another definition of those terms appears in the Special Conditions.

D.2.1 “Applications”: means all software developed by Melis in addition to the standard modules and features of Melis Platform, and in particular the Client-specific “business applications” that are the subject of the Service and, where applicable, agreed in the Special Conditions, and which are accessible online over the Internet.

D.2.2 “Software”: means the computer programs in which Melis holds all intellectual property rights, the characteristics of which appear, where applicable, in the Special Conditions, which are produced by Melis as part of or prior to the Service, and a right of use of which may be granted to the Client under the Contract. The Open Source Melis Platform solution, together with all its standard modules developed by Melis (Melis CMS, Melis Commerce, Melis CRM, Melis Marketing, Melis Blog, Melis Newsletter, etc.), forms part of this Melis Software and is protected by copyright, the exclusive operating rights to which are held by Melis SAS, on the basis of which the “Sites” and “Applications” are developed and operated under the General Terms and Conditions of Service and maintained under these TMA General Terms.

D.2.3 “Anomaly”: means any malfunction or defect in a “Melis Module”, an “Application” or a “Site”, reproducible by the Client, not resulting from misuse or from use that does not comply with the functional specifications by the Client.

D.2.4 Anomalies are classified into 3 categories defined below, according to their degree of severity:

• “Blocking Anomaly”: means the reproducible anomaly that makes it impossible to use one or more essential functions of the “Applications” without a workaround;
• “Major Anomaly”: means the reproducible anomaly that makes it impossible to use one or more essential functions of the “Applications” for which a workaround exists;
• “Minor Anomaly”: means the reproducible anomaly that is neither Blocking nor Major.

D.2.5 “Client”: means the party with which Melis enters into the Contract, as that party is identified, where applicable, in the Special Conditions.

D.2.6 “Contract”: means these TMA General Terms, including their preamble, and, where applicable, the Special Conditions agreed with the Client, any annexes to the Special Conditions, as well as any amendment to the Special Conditions signed, where applicable, by the Parties.

D.2.7 “Equipment”: means the hardware whose specifications and characteristics appear, where applicable, in Special Conditions, and which may evolve during the performance of the Contract, as the Parties may agree.

D.2.8 “Parties”: means Melis together with its Client, and “Party” means either of these persons.

D.2.9 “Service(s)”: means the service(s) to be performed by Melis under the Contract, as described, where applicable, in the Special Conditions.

D.2.10 “Site”: means the Client's Internet, Intranet or Extranet site(s) that are the subject of the Service and, where applicable, agreed in the Special Conditions, and which are accessible online over the Internet at the URL address(es) designated in the Special Conditions.

D.3. Purpose

The purpose of these TMA General Terms is to define the terms and conditions under which Melis, which accepts it, is entrusted by the Client with the provision of TMA Services for the said Applications and Sites on behalf of the Client, under the conditions set out herein.

The TMA Services relate only to the integration and specific developments of a designated project and client and of its operating environment if the latter is managed by Melis. TMA Services are used to correct Anomalies found and to make minor enhancements.

D.4. Scope and Performance of the Services

Melis undertakes to provide the TMA Services for the Sites and Applications, on an exclusive basis, to the Client, as described below and in accordance with these TMA general terms, namely:

D.4.1 Corrective maintenance

Corrective maintenance services consist of the correction and/or workaround of any reproducible Anomaly reported by the Client and/or detected by Melis, which would appear when using the Sites or Applications, from IT equipment meeting the minimum standard: a sufficiently powerful personal computer with a network card, an Internet connection and a recent web browser (MS Edge, Firefox, Chrome or Safari).

Should the Client use equipment other than the above and/or not compliant with the above standards, Melis shall not be required to carry out the necessary corrections under corrective maintenance.

At the Client's request, Melis undertakes to provide corrective maintenance services for the Sites and Applications by means of the TMA and ticket-handling procedure described in these general terms.

The time spent on each Melis intervention shall be deducted in hour(s) from the package of hours agreed between the Parties, as stated in these general terms. Any hour started is due in full.

D.4.2 Evolutionary maintenance

Evolutionary maintenance consists of any action taken by Melis that helps to improve the level of quality of the Sites and Applications (such as, in particular, reliability, security, documentation, etc.) or to extend their functionality.

At the Client's request, Melis undertakes to provide evolutionary maintenance services for the Sites and Applications by means of the ticket-handling procedure described in these general terms, for simple enhancements whose total completion time is estimated at less than 8 hours.

The developments as such of these enhancements carried out on the developed Sites and Applications are governed by the General Terms and Conditions of Service. Only the organisation and the method of invoicing are governed by these TMA General Terms.

The time spent on each Melis intervention shall be deducted in hour(s) from the package of hours agreed between the Parties, as stated in these general terms. Any hour started is due in full.

D.4.3 Support for the Melis Platform Solution

The Melis Platform Solution is maintained as part of the Melis Platform subscription, with a service level depending on the chosen edition. If an anomaly is detected, the Client opens a ticket which will be handled by Melis. If the maintenance team finds that the anomaly originates from a Melis Platform bug, the ticket will be forwarded and corrected as soon as possible by the Melis R&D team.

• The free Melis Platform edition does not include support;
• The Melis Platform Small Business Edition includes only ticket support with a maximum acknowledgement time of 48h;
• The Melis Platform Professional Edition includes ticket and telephone support during business hours with a maximum acknowledgement time of 6h;
• The Melis Platform Enterprise Edition includes ticket and telephone support 24/7/365 with a maximum acknowledgement time of 2h.

No time will be deducted from the TMA budget for correcting an anomaly relating to Melis Platform, with the exception of the free Melis Platform edition, which is not supported.

D.5. Melis's obligations

Melis undertakes to take into account any maintenance request made under the conditions hereof and to perform the TMA Services requested by the Client on the Applications and Sites, in accordance with the TMA procedure set out in these general terms.

Melis undertakes to implement all useful means and/or resources to provide the TMA Services defined in this Contract.

Melis is responsible for the actions of its staff and any subcontractors in the performance of these general terms and is solely responsible for the means, materials and methods implemented under these general terms, in particular by assigning qualified staff.

Melis undertakes to carry out the services in accordance with the state of the art of its profession and in particular to bring its know-how, experience and expertise to bear.

D.6. Client's obligations

The Client shall specify to Melis which persons within the Client's company are authorised to request the TMA Services covered by these TMA General Terms.

On the occasion of any request for the provision of services made by the Client to Melis, the Client shall do its utmost to cooperate with Melis and undertakes to provide Melis, within the required timeframes, with all functional, technical or other information required by Melis and necessary for the performance of the services.

The Client shall back up its data and files in such a way that Melis cannot under any circumstances be held liable for any damage and/or loss of data that may result from an Anomaly of any kind whatsoever.

D.7. Liability – Exclusions – Limitations

D.7.1 Melis shall endeavour to provide the TMA Services on behalf of the Client under the conditions set out in these general terms. In particular, Melis cannot be held liable for matters that remain beyond its control, such as, for example, failures by, and connection interruptions caused by, the Site's host, or anomalies arising from the Equipment where the latter belongs to, or is under the control of, the Client.

D.7.2 To avoid any damage to it resulting from any potential harm to the files, memory, documents or any other elements that it may have entrusted as part of the services covered by these general terms, the Client shall, for this purpose, protect itself against the risks by making a duplicate of the documents, files and media, the Client being responsible for taking out any insurance it deems necessary in this respect.

D.7.3 Melis is responsible for its staff and subcontractors and for all direct damage, losses, costs and expenses that may be caused to the Client by it or by them, and shall indemnify the Client for any direct damage of any kind whatsoever, within the limit set out in article D.13.4 hereof.

D.7.4 It is expressly agreed between the Parties that Melis cannot under any circumstances be held liable for maintenance services falling within the following cases and the direct or indirect consequences that may result therefrom, which are not covered by these general terms:

• Acts or initiatives taken by the Client that do not comply with the instructions given by Melis during its interventions and mentioned in its intervention tickets;
• Intervention by third parties for development and/or maintenance on the Applications and Sites and/or on the source code of the Applications and Sites and/or on the source code of Melis Platform, without the prior written consent of Melis or in disregard of the provisions hereof;
• Damage arising from and/or resulting from cases of force majeure.

The cases listed above being excluded from these general terms, Melis reserves the right, at its sole discretion, to provide the Client with the maintenance services covered by the aforementioned exclusions, in accordance with the terms and conditions of articles D.4, D.5, D.6 and D.7 above, it being specified that each intervention in this respect shall give rise to separate invoicing, on the basis of quotations accepted and signed in advance by the Client.

D.8. Force majeure

In the event of a case of force majeure, as defined by case law, lasting more than thirty (30) days, the obligations under these general terms shall expire by operation of law at the initiative of either of the two Parties by registered letter with acknowledgement of receipt, without notice and without any formality other than the sending of the said registered letter with acknowledgement of receipt, without prejudice to the provisions of article D.9.3 below.

D.9. End of contract

In the event of expiry of these general terms for any reason whatsoever:

D.9.1 The Client shall owe Melis the fee relating to the current TMA package, which shall become immediately and fully payable on the day of expiry of these general terms for any reason whatsoever and, in particular, on the day the early termination takes effect, without prejudice to any claim for damages;

D.9.2 All Confidential Information provided by one of the Parties to the other under these general terms, as well as all documents and data, shall be returned as soon as possible to the Party that provided them;

D.9.3 The Client further undertakes to destroy any document or medium relating to the source code of the Applications and Sites provided by Melis.

D.10. Subcontracting

Melis reserves the right to subcontract all or part of the Services covered by the Contract to third parties, without the prior consent of the Client, which it acknowledges and accepts. In this case, Melis shall remain the Client's sole point of contact for the performance of the Service and shall retain sole responsibility for its proper performance.

Where the performance of the TMA Services leads Melis to access personal data processed within the Client's Sites or Applications, Melis acts as a processor within the meaning of Article 28 of Regulation (EU) 2016/679 (GDPR) and processes such data only on documented instructions from the Client and solely for the purposes of maintenance. The terms of this processing, the applicable security measures and the fate of the data at the end of the Contract are set out in Annex C “Personal Data Processing”. Where the subcontracting referred to above concerns such processing, Melis shall inform the Client in advance of any addition or replacement of a subsequent subcontractor, the Client having the right to object under the conditions and within the timeframes provided for in the said Annex.

D.11. Fees

D.11.1 In consideration for the TMA Services, the Client undertakes to pay Melis a fixed fee, the amount of which is based on a number of TMA hours to be delivered over a maximum period of 12 months and determined in the purchase order to which these general terms relate.

It is agreed between the Parties that each Melis intervention under a TMA Service shall be charged against this fixed amount according to the number and hours of intervention carried out by Melis for the Client, under the conditions set out in these general terms.

D.11.2 For each ticket, the Client shall be informed of the count of intervention hours carried out by Melis. Melis shall also notify the Client when a count of 90% of the package hours is reached.

If, at the end of the 12 months, the package is not fully used, an additional period of 6 months shall be granted to use the remaining unused hours. Beyond the 18-month period, the unused hours shall be lost. Melis shall not refund any unused hours.

D.12. Invoicing and payment terms

Melis shall send the Client the invoice for the entire package of hours jointly estimated by Melis and the Client upon acceptance of the TMA quotation (package of hours).

Payment of Melis's invoices shall be made by the Client, by bank transfer, within thirty (30) days of the date of receipt of the invoices.

In the event of non-payment by the Client of a Melis invoice on its due date, it is understood between the Parties that any sum owed to Melis shall bear interest at a rate equal to three (3) times the legal interest rate, as from the first business day of delay. In accordance with articles L.441-10 and D.441-5 of the French Commercial Code, any late payment also gives rise, by operation of law, to the payment of a fixed indemnity for recovery costs of 40 euros per invoice, without prejudice to additional compensation, upon justification, where the recovery costs incurred exceed this amount.

D.13. Liability of Melis Technology

D.13.1 Melis shall be liable to the Client only for the direct and personal loss actually suffered by the Client, for a proven fault of Melis, and to the extent that the said fault is the cause of the said loss.

D.13.2 The Parties undertake to do their utmost to limit the losses they may suffer in the performance of the Contract.

D.13.3 Compensation for indirect damage, including, without limitation, loss of operations, productivity, profits, brand image, contract(s), investment(s), time, data, file(s) or computer program(s), is excluded from any liability of Melis, even if Melis has been advised of the possibility of such damage.

D.13.4 In any event, save in the case of gross negligence, the liability of Melis shall not exceed the lower of the following two amounts: (i) 150,000 euros, or (ii) the amount of the sums actually received by Melis in respect of the Service over the four (4) months preceding the event giving rise to its liability.

D.14. Non-solicitation of staff

D.14.1 Each Party waives, save with prior written consent, the right to make, directly or indirectly, offers of employment to an employee of the other Party who has worked for it or on a matter concerning it, or to take such employee into its service, under any status whatsoever.

D.14.2 This waiver is valid for the duration of the Contract and for the twelve (12) months following the end of the Contract, for whatever reason.

D.14.3 Should one of the Parties fail to comply with this undertaking, it undertakes to compensate the other Party by paying it an indemnity equal to the gross remuneration that the employee will have received during the twelve months preceding their departure.

D.15. Miscellaneous

D.15.1 The Contract constitutes the entire agreement of the Parties as regards its subject matter and supersedes all verbal or written agreements entered into before its effective date.

D.15.2 The Contract is governed by French law.

D.15.3 Any dispute arising in connection with the Contract shall fall within the exclusive jurisdiction of the Paris Commercial Court, notwithstanding multiple defendants or in the event of a warranty claim, including for urgent or protective proceedings, summary proceedings or proceedings by petition.

D.16. Arrangements for the TMA procedure

D.16.1 Support contacts

For any maintenance request under the conditions set out in these general terms, the Client shall contact Melis by creating a ticket at the following address: https://support.melistechnology.fr

D.16.2 Persons authorised to use the TMA Services

If the Client wishes a restricted number of persons to be authorised to request development or TMA Services, it shall designate them by name in a letter or email sent to its sales contact at the time of signing the first purchase order and shall ensure that this has been duly taken into account.

The Client shall also designate in writing the person authorised to approve evolutionary maintenance requests on the basis of the estimates made by Melis in the relevant ticket.

D.16.3 Services performed remotely

All TMA Services are provided remotely by Melis and, consequently, performed from Melis's premises.

D.16.4 TMA procedure and handling of corrective maintenance tickets

Step 1: Initialisation (new)

A corrective maintenance request gives rise to the opening or initialisation of a ticket created by the Client and entered by the Client's dedicated contact person(s) directly in the ticketing system https://support.melistechnology.fr, for which each of the Client's contacts will have a personal ID/password. For reasons of security and traceability, the Client is expressly required to ensure that IDs/passwords are never shared by several people within its organisation.

If the request was made by telephone, the Client undertakes to confirm it in writing to Melis, by means of the ticketing tool.

The Client undertakes to describe as accurately as possible the conditions for reproducing the Anomaly identified, by providing all the information necessary for analysis, such as:

• the conditions under which the Anomaly appears;
• the functional description of the Anomaly and its consequences;
• the proposed degree of severity;
• any supporting evidence relating to the observation(s) of the Anomaly (screenshot, logs).

When the ticket is created by the Client, an automatic acknowledgement of receipt of the Client's email will be sent by Melis, which constitutes the starting point of the timeframes referred to below.

Step 2: Qualification (comment, assigned)

Upon initialisation of the ticket by the Client, Melis shall, in return, qualify the nature of the maintenance request on the basis of one of the following options:

• verification of the request (completeness, understanding, justification, etc.);
• in-depth analysis to detect the origin of the Anomaly;
• impact assessment on the modules and documents concerned;
• assessment of the tasks required for the correction/enhancement;
• any request for comment in order to obtain clarification;
• scheduling of tasks for handling;
• assignment of the person who will handle the request.

Step 3: Handling (comment, assigned)

Once the qualification has been carried out by Melis, the request relating to the ticket will be handled by Melis.

To this end, Melis shall endeavour to test the Anomaly in order to ensure its reproducibility, to correct or work around the Anomaly, depending on its degree of severity, or to provide any enhancement requested by the Client:

• Blocking Anomaly: the Anomaly must be acknowledged within the timeframe indicated in article D.4.3 depending on the Melis Platform edition subscribed by the Client, as from the sending by Melis of the automatic acknowledgement of receipt following the initialisation of the ticket by the Client, in accordance with the aforementioned procedure. Melis shall then endeavour to handle and/or correct and/or work around the Anomaly as soon as possible and in a manner satisfactory to the Client, which solution shall only be implemented after acceptance testing and approval by the Client.
• Major Anomaly: the correction must be acknowledged within the timeframe indicated in article D.4.3 depending on the Melis Platform edition subscribed by the Client, as from the sending by Melis of the automatic acknowledgement of receipt following the initialisation of the ticket by the Client, in accordance with the aforementioned procedure. Melis shall then endeavour to handle and/or correct and/or work around the Anomaly as soon as possible and in a manner satisfactory to the Client, which solution shall only be implemented after acceptance testing and approval by the Client.
• Minor Anomaly: the correction must be acknowledged within 72 business hours as from the sending by Melis of the automatic acknowledgement of receipt following the initialisation of the ticket by the Client, in accordance with the aforementioned procedure. Melis shall then endeavour to handle and/or correct and/or work around the Anomaly as soon as possible and in a manner satisfactory to the Client, which solution shall only be implemented after acceptance testing and approval by the Client.

Step 4: Closure (resolved, closed)

Melis shall notify the Client of the end of its intervention and of the correction or workaround of the Anomaly with the status “resolved”; the hours and dates of updates recorded in the ticketing system by Melis under this procedure shall prevail. Where applicable, the Client expressly attests to the proper performance of the intervention, which shall then have the status “closed”.

D.16.5 TMA procedure and handling of evolutionary maintenance tickets

Step 1: Initialisation (new)

An evolutionary maintenance request gives rise to the opening of a ticket created by the Client and entered by the Client's dedicated contact person(s) directly in the ticketing system in the same way as for a corrective maintenance ticket, by checking the “Enhancement” status of the ticket.

The Client's request is always made in writing to Melis, by means of the ticketing tool.

The Client undertakes to describe the expected enhancement as accurately as possible, describing in the greatest possible detail the functional or presentation changes. The expected enhancement must be simple and quick to carry out.

When the ticket is created by the Client, an automatic acknowledgement of receipt of the Client's email will be sent by Melis, which constitutes the starting point of the timeframes referred to below.

Step 2: Qualification (comment)

Upon initialisation of the ticket by the Client, Melis shall, in return, qualify the nature of the evolutionary maintenance request according to the following procedure:

• analysis of the request (completeness, understanding, justification, etc.);
• impact assessment on the modules, applications and sites;
• estimation of the time to carry out the enhancement, including acceptance-testing and deployment times.

The identification and estimation of evolutionary maintenance, by means of an estimated quotation, must be carried out within 5 business days following the initialisation of the ticket by the Client in accordance with the aforementioned procedure, and the complete expression of the need.

Step 3: Communication of the estimated quotation (comment)

Melis communicates to the Client an estimated quotation for the development, acceptance-testing and deployment time of the enhancement request.

The Client provides feedback indicating in writing its choice whether or not to carry out this enhancement in the ticket. If the answer is negative, the ticket is closed. If the answer is positive, Melis schedules and carries out the development of the enhancement.

Step 4: Carrying out the enhancement (assigned)

Melis delivers the enhancement on the acceptance-testing server and the Client carries out the acceptance testing to ensure that the enhancement meets its expectations and works correctly.

The Client provides feedback. If an anomaly is found, Melis corrects it and exchanges continue until a deployment order is obtained from the Client to the production server.

Step 5: Closure (closed)

Once the enhancement has been deployed to production, Melis deducts from the TMA package the time actually spent in hours on the enhancement. This time spent may be lower or higher than the estimated quotation initially communicated.