GENERAL USAGE CONDITIONS
1. Application of the general usage conditions
- These general usage conditions (the "Conditions") define the terms and conditions in which ASAP makes available to the Users the ASAP Platform and the Services that are available on the latter.
- Access to the ASAP Platform and to the Services subscribed by the User is conditional upon the acceptance of and compliance with these Conditions. Any User (and any Account Owner acting on its own behalf) wishing to access the above must have taken cognisance of these Conditions and undertakes to comply with them unconditionally.
- In these Conditions:
Account Owner(s) means any person duly authorised to use the User Account(s) in the name and on behalf of the User.
ASAP means Auchan Suppliers Advanced Platform, a Belgian public limited liability company (société anonyme) having share capital of € 2,000,000, having its registered office at 29, rue de la Terre in Briques, 7522 Marquain (Belgium), registered at the Tournai Register of Legal Entities under No. 0846 545 922.
ASAP Platform means the secure IT and technical platform, and the related IT solution set up by the Provider and dedicated to ASAP, which holds usage rights and intellectual property rights, accessible to the Users, Account Owner(s), Auchan Companies and Partner Banks at the following address: https://ruby.treasury-factory.com.
Auchan Company means (i) on the date of these Conditions: Auchan Retail France, Auchan Retail Romania, Auchan Retail Polska, Auchan Retail Portugal, Auchan Retail Luxembourg and (ii) in future, any company affiliated with Auchan Holding and engaging in a commercial or civil activity under the name of an Auchan Company belonging to Auchan Holding identified on the site asap.auchan.com.
Batch of Invoices means one or more invoices issued by the User and, if applicable, one or more credits, denominated in the same currency, having been approved by the activated Auchan Company/ies and having the same payment due date, it being specified that each Batch of Invoices must have a credit balance in favour of the User.
Financing Contract means any contract entered into between a Partner Bank and the User wishing to benefit from the offer to pre-finance Batches of Invoices.
Auchan Retail International [or ARI] means Auchan Holding, a public limited liability company (société anonyme) having its registered office at 40, avenue de Flandre, 59170 CROIX and registered at the Lille Métropole Trade and Companies Register under No. 476 180 625.
Information means any information communicated by the User on the ASAP Platform and regarding, notably, the Account Owner(s), the User and the Batches of Invoices.
Partner Banks means the Partner Banks of ASAP (i) offering the Users pre-financing solutions for invoices approved by the Auchan Companies in accordance with the contracts entered into with the Auchan Company and the User and (ii) having access to the ASAP Platform in accordance with the contract entered into with ASAP.
Provider means Kyriba, the third-party publisher of the ASAP Platform, a simplified joint stock company (société par actions simplifiée) located at 247 les Bureaux de la Colline, 92210 Saint-Cloud, registered at the Nanterre Trade and Companies Register under No. 429 336 597.
Services means the services offered to the Users by ASAP via the ASAP Platform, as described in greater detail in Article 6, "Services".
Syntec means the index used to measure the fluctuations of the cost of labour, an index that is determined and updated every month by the Syntec professional federation, or any index that replaces it, as decided by Syntec. In the event of a significant modification affecting the calculation method or the composition of the index, or if this index ceases to exist, the Users agree that ASAP shall replace it with an index having similar characteristics.
User(s) means the suppliers of the Auchan Companies having joined the ASAP Platform and one or more Services offered by ASAP and having one or more activated User Accounts.
User Account(s) means the User’s account(s), providing access to the ASAP Platform and to the use of the Services by the User and the Account Owner(s), the access to which shall be limited to the needs of the User, it being specified that each User can, for each User Account, activate the Auchan Company/ies of its choice.
2. Acceptance of the Conditions
- These Conditions are intended to govern the use of the ASAP Platform and the related Services for the activated Auchan Companies, as well as any content accessible via the ASAP Platform or the Services. Any request to join the ASAP Platform and the Services shall imply the prior consultation and acceptance of these Conditions.
- Ticking off on the asap.auchan.com site the box “I accept”, the User acknowledges and confirms that he has read and agrees with the terms and conditions of the General Conditions and further accepts to be bound by them. The User further certifies as being duly authorised to bind his company and as being accurate the information delivered in relation to the General Conditions. Otherwise, the User shall not be entitled to access the ASAP Platform or the related Services.
- The Conditions and/or the ASAP Platform and/or the Services can be modified and/or updated at any time by ASAP, and as often as necessary, in which case the Users shall be notified thereof by e-mail and shall be entitled to notice of one (1) month to request the cancellation of their User Account(s) and of the Services. Thereafter, they shall be deemed to have accepted these modifications and/or updates.
- The up-to-date version of the Conditions shall be accessible on the site asap.auchan.com.
3. Joining the Platform
- Any supplier of one or more Auchan Companies wishing to benefit from the Services offered by ASAP must first submit a request to join the ASAP platform via the Internet site asap.auchan.com, together with the required documents in electronic format.
- ASAP’s approval of the request to join shall result in (i) the creation of the User Account(s), (ii) the activation of the Auchan Company/ies chosen by the User and (iii) the activation, as well as the joining, of the ASAP Platform and of the Services chosen by the User. The access codes to the User Account(s), providing access to the ASAP Platform and the use of the Services subscribed, shall be transmitted to the User electronically.
- Any User wishing to modify the type of Services to which it has subscribed at the time it joins must submit a written request to ASAP electronically, at the address indicated in Article 14 (Notifications).
4. Activation of the User Account(s)
- Up to two (2) User Accounts, effective for the Auchan Company/ies selected by the User, shall be made available to each User, for the purposes of the Services.
- The remuneration received by ASAP for the activation of the User Account(s) (including, the activation of the first Auchan Company selected) is equal to 170 euros, payable on the date of the activation of the User Account(s), it being specified that the remuneration shall not be received for the activation of the Auchan France, for Auchan Polska or for Simply Market.
- The selection, by the User, of any additional Auchan Company, in one or more of the User Account(s) shall be invoiced at 90 euros, payable on the date of the activation of the additional Auchan Company/ies, it being specified that no remuneration shall be received for the addition of the Auchan France, for Auchan Polska or for Simply Market.
- Each additional User Account, opened at the User’s request, shall be invoiced at forty (40) euros, payable in one instalment at the time of the opening of the additional User Account.
5. Management of the User Account(s)
- One or more Account Owner(s) of the User Account(s), duly authorised to use the ASAP Platform and the related Services, in the name and on behalf of this User, shall manage the User Account(s).
- Any modification of the Account Owner(s) must be notified by the User to ASAP by e-mail, and shall be effective within a period of five (5) days from ASAP’s receipt of said notification.
- The Services are those offered to the Users by ASAP via the ASAP Platform. They can be supplied, based on the needs expressed by the Users, in the form of a combined offer, or as an independent service.
- The PACK ASAP BASIC includes, notably:
- the creation, parameterisation and updating of the User Accounts;
- the creation and communication of the access codes providing access to the ASAP Platform and to the Services;
- the monitoring of the smooth circulation of the information transmitted by the User, the Account Owner(s) and the Auchan Companies on the ASAP Platform;
- the consultation and backing-up of the Batches of Invoices;
- access to the payment details of the Batches of Invoices;
- access to a mode to simulate requests for the pre-financing of the Batches of Invoices;
- the weekly reporting on the most recent Batches of Invoices and its payment details; and
- access to the technical support of the ASAP Platform supplied in connection with the Provider.
- The UNLIMITED ASAP PACK includes, notably:
- all of the Services included in the PACK ASAP BASIC (as the services must be modified to ensure that they work as part of the UNLIMITED ASAP PACK);
- access to the list of the ASAP Partner Banks offering pre-financing solutions;
- the right for the User to submit a request for pre-financing of the Batch(es) of Invoices of its choice;
- the transmission of any pre-financing request from the User to the Partner Bank of its choice;
- the monitoring of the information transmitted to the Partner Banks and concerning any pre-financing request (routing of Information); and
- the receipt of the pre-financing approvals by the Partner Bank and the making available of this information to the User.
- The UNLIMITED ASAP PACK Service shall only be accessible as of the signing of a Financing Contract between the User and the Partner Bank and insofar as ASAP has been informed beforehand. The annual remuneration received by ASAP for the User’s subscription to the UNLIMITED ASAP PACK is equal to 420 euros. This remuneration shall be calculated on a prorated basis and shall be payable in advance for the coming year.
7. Payment conditions
- The amounts of the remunerations received by ASAP shall be revised on the first day of January of each year on the basis of the fluctuations of the Syntec index during the calendar year ended. Any modification of the amount of said remunerations shall be the subject of an update of these Conditions.
- The remuneration and the related expenses are exclusive of all applicable taxes, if any.
- The remunerations referred to in these Conditions shall be invoiced annually, sent by ASAP to each User via postal mail, or via e-mail.
- The User undertakes to pay by transfer, to ASAP’s bank account indicated on the corresponding invoice, in its entirety, the aforementioned expenses for each Service to which it has subscribed, within eight (8) days following the invoice’s date of receipt.
- Without prejudice to any other right or recourse, if the User does not pay all of the expenses invoiced by ASAP by the agreed date, ASAP shall be entitled, without the need for prior notice to remedy, to:
- receive interest for payment delay at the rate indicated by Article L441-6 paragraph 8 of the French Commercial Code (Code de Commerce) per day of delay elapsed, from the day following the due date until the effective payment date (each month begun shall be counted as a full month); and
- suspend all of the Services and access to the ASAP Platform until the payment has been made in full.
8. Representations and undertakings
- The User acknowledges that, subject to the applicable laws and regulations and, if applicable, any other stipulation, a Batch of Invoices appearing on the ASAP Platform can no longer be modified, whether at the request of the User, or at the request of the Auchan Company in question. Consequently, any Batch of Invoices in the process of being paid cannot be paid to a third-party or be the subject of a pre-financing request in favour of a third-party.
- The User warrants ASAP that:
- it is in possession, as are the Account Owners, of the resources needed to access the ASAP Platform and to use the subscribed Services, it being specified that the Internet connection costs associated with the use of the ASAP Platform and of the Services shall be borne exclusively by the User and/or by the Account Owner(s); and
- it is the owner of the Batches of Invoices, which are free of any rights in favour of any third-party.
- the Services of the UNLIMITED ASAP PACK constitute additional services which the User can access on an optional basis.
- If the user subscribes to the UNLIMITED ASAP PACK, it acknowledges and accepts that:
- it contacted ASAP on its own initiative in order to supply to the latter the Services of the UNLIMITED ASAP PACK and, if applicable, to communicate its contact information to a Partner Bank, without ASAP having first contacted it for this purpose;
- notwithstanding any conflicting stipulation, it has expressly authorised ASAP to communicate to the chosen Partner Bank (i) its contact information, without ASAP having first contacted it for this purpose, and (ii) the information that the chosen Partner Bank could request from it;
- it has the knowledge and experience necessary to assess the advantages and the risks incurred by the activation of the Services of the UNLIMITED ASAP PACK and it is therefore responsible for deciding whether or not this choice is justified and for making use of its own counsels, if applicable;
- Under no circumstances has ASAP transmitted to it the contractual documentation of a Partner Bank with a view to entering into a Financing Contract; and
- ASAP’s role is limited to rendering Services associated with the Platform and to communicating the User’s contact information to the Partner Bank, if requested by the User.
- Each User undertakes to:
- ensure the confidentiality of the ASAP Platform, of the Services, as well as of their access codes, while refraining from communicating these to anyone, and by modifying the passwords as quickly as possible in the event that they are no longer confidential;
- send ASAP any modification of any Information, within five (5) days following said modification;
- transmit correct and complete Information via the ASAP Platform;
- not to modify, adapt or transform the ASAP Platform, with the exception of those acts that are strictly necessary to the use of the ASAP Platform, in accordance with its intended purpose, or the correction of errors, as mentioned in Article L. 122-6-1 of the French Intellectual Property Code (Code de la propriété intellectuelle) ;
- not to grant a sublicense, or grant, rent, lend, distribute or transfer the use of the ASAP Platform and of the Services and the access rights to the ASAP Platform to third parties;
- not to decompile, disassemble or determine or attempt to determine in any other manner the source code (or the underlying ideas, algorithms, structure or organisation) of the ASAP Platform;
- on each date of a pre-financing request transmitted via the ASAP Platform and on each transfer date of the Batch(es) of Invoices under the Financing Contract, not to transfer this receivable to a third-party; and
- not to request pre-financing via the ASAP Platform concerning any Batch of Invoices that is the subject, whether in full or in part, of an assignment, delegation or pledge, or attachment of money in the hands of a third-party.
- access the ASAP Platform and use the Services subscribed in accordance with the stipulations of these Conditions and, more generally, with applicable laws and regulations in force.
- ASAP undertakes to:
- make the ASAP Platform available to the Users, as of the approval and activation of the User Account(s), in accordance with these Conditions; and
- make the Services available to the Users in accordance with the instructions communicated on a regular basis by the User and/or the Account Owners.
- It is hereby recalled that each User continues to have as contact person each Auchan Company concerned with regard to any matters regarding the consultation, approval or payment of the Batch(es) of Invoice(s).
- The User assumes full responsibility for the use of the ASAP Platform and of the Services, made by the Account Owners, and, notably, for all direct or indirect consequences of a fraudulent use or of any use by an unauthorised person.
- The User assumes full responsibility for any request for pre-financing of the Batches of Invoices via the ASAP Platform.
- ASAP cannot be held responsible in the event of a difficulty in accessing or inability to access the ASAP Platform caused by:
- a nonconforming use of the ASAP Platform by the User, a technical or physical problem involving the User’s equipment, or inaccurate information communicated by the User; and
- maintenance of the ASAP Platform planned by the Provider, the transmission by the Auchan Company in question to ASAP of erroneous or incomplete information concerning a Batch of Invoices issued by the User; and/or
- a force majeure event.
- ASAP waives all responsibility in the event that a Partner Bank refuses (i) to enter into a Financing Contract, (ii) to grant the pre-financing solution requested by the User pursuant to a Financing Contract or (iii) after its signing, to continue the performance of the Financing Contract for any reason whatsoever and at any time whatsoever.
- ASAP cannot be held responsible in the event of the absence on the ASAP Platform of the Batches of Invoice issued by the User and not transmitted by the Auchan Company, it being recalled that each User shall continue to have as contact person each Auchan Company for all matters concerning the consultation, approval or payment of the Batch(es) of Invoice(s).
- It is understood that, for any other cause, ASAP’s liability resulting from the unavailability or non-functioning of the ASAP platform preventing the use of the Service(s) cannot exceed, per claim, the remuneration received by ASAP for the Services used throughout the term during which the Service(s) was/were unavailable.
- In the event of a violation by the User of the declaration concerning the absence of a double transfer of the receivable, the User shall be bound to pay the Auchan Company or ASAP, acting in the name and on behalf of the Auchan Company, the amount of the twice transferred receivable.
10. Suspension – Desactivation – Closing of the User account(s) and of the Services
- ASAP reserves the right to suspend, deactivate or close the User Account(s):
- if the User fails to pay the remunerations due to ASAP for the Services to which it has subscribed;
- in the event of use of the ASAP Platform and/or of the Services that does not conform to these Conditions and, more generally, to laws and regulations;
- in the case of established fraud;
- in the case of insolvency procedures involving the user, as defined by Book VI of the French Commercial Code (Code de Commerce); and
- in the event of the winding-up of the User.
- Each User shall be entitled to suspend, close or cancel its User Account(s) or to cancel a specific Service by notifying ASAP for this purpose, by registered mail with acknowledgment of receipt, which must specify the User Account(s) and/or the Service to be cancelled. Any suspension, closing or cancellation of a User Account or of a Service by the User shall become effective within a period of eight (8) days.
- Notwithstanding any conflicting stipulations, all of the amounts payable to ASAP pursuant to the Conditions are immediately due in the event of the cancellation of any User Account, without prejudice to any right of ASAP to claim damages pursuant to applicable laws and regulations or to the stipulations of the Conditions.
- It is understood that no cancellation of a Service during the year shall give rise to any reimbursement of the remuneration received by ASAP for the year in progress, as stipulated in Article 6.4 of these Conditions.
11. Intellectual property rights
- The Information transmitted or communicated for the purposes of the use of the ASAP Platform is reserved for exclusively professional use. It cannot, in full or in part, be reproduced or transmitted (whether electronically, or in any other manner) with the exception of the information the reproduction of which is authorised for the Services supplied.
- All of the data (information, data, text, sounds, images, drawings, graphics, distinctive signs, logos and trademarks) appearing on the pages of the ASAP Platform cannot be reproduced or used by the User or the Account Owner(s).
- Any reproduction, representation or dissemination, for purposes other than professional purposes, of all or part of the content of the ASAP Platform on any medium or by any process whatsoever is prohibited, with the exception of information, the reproduction of which is authorised for the purposes of the Services. A breach of this prohibition shall constitute an infringement that can give rise to the infringer’s civil and criminal liability.
- It is strictly prohibited to use the ASAP Platform for public or commercial purposes, without the prior written consent of ASAP and of the Provider.
12. Data processing and freedoms
- The personal data transmitted by the Account Owner(s) and the User on the ASAP Platform and/or on the asap.auchan.com Internet site, or providing access to the ASAP Platform is necessary to the smooth rendering of the Services on the Platform.
- In its absence, the Services cannot be rendered in an optimal manner (this data includes the name of the company, the complete address, the intra-Community VAT number, the business registration number, the name, e-mail address and telephone number of the main contacts, the date of the sending of access to the User, the acronym, the date of receipt of the documents, the activation date of the User Account(s), and the initial date of on-boarding by the Partner Bank).
- ASAP shall process the personal data necessary to the use of the Services on the Platform, in accordance with the Belgian Law of 8 December 1992 regarding the protection of personal data.
- The information entered on the ASAP Platform or on the ASAP Internet site will only be used and will only be communicated solely for the purposes of internal management, in order to comply with legal or regulatory obligations, or for the purposes of commercial actions.
- For the purposes of internal management, the User and the Account Owner(s) expressly accept that the identifying information concerning them can be transmitted by ASAP to the Provider and/or to the technical subcontractors and providers performing work on the ASAP Platform.
- In addition, the User accepts that ASAP can transmit identification data (notably, company name, contact information of the contact-surname, given name, telephone number, e-mail address and incorporation certificate) to the Partner Banks that could make it a financing offer, for commercial contact purposes.
- This information may give rise to exercise of the right of access, limitation, opposition and rectification and the right to portability of your data, as well as the right to define guidelines on the use of your personal data if you could no longer exercise these rights, under the conditions laid down by law n°78-17 of 6 January, 1978 relating to data processing, files and individual freedom amended on 6 August, 2018 and the General Data Protection Regulation 2016/679 of 14 April 2016..
- The User and Holder(s) are thus informed that they may exercise these rights, free of charge and after confirmation of their identity and a contact address, to ARI at the address mentioned in the Article 14 (Notifications) or to the Data Protection Officer to: firstname.lastname@example.org or to the following address: Attn: Data Protection Officer, Rue du Maréchal de Lattre de Tassigny, 59170, Croix, France.
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- In the event that any one of the stipulations of these Conditions is considered null, invalid or inapplicable, by a law, a regulation, or a final court decision, it shall be deemed unwritten and the other stipulations shall remain in force and fully in effect.
- If ASAP or the User do not rely on, or take a long period of time before relying on the application of an article of these Conditions, this cannot be construed as a waiver to rely on the stipulation in the future.
- All communications and notifications made pursuant to these Conditions shall be sent, as the case may be, by:
- registered mail with request for acknowledgment of receipt for the cancellation of the User Account(s) and of the Services by the User; and
- e-mail, letter sent via first-class mail, or fax, for the purely administrative management of the User Account(s).
- Any communication and notification to ASAP must be sent to the following address and numbers (or to any other address that will be subsequently notified by ASAP to the User):
Auchan Suppliers Advanced Platform
40, Avenue de Flandre
Telephone: +33 (0) 20 81 69 69
E-mail address: email@example.com
15. Governing law and competent jurisdiction
- These Conditions are governed by and construed in accordance with French law.
- In the event of a dispute or disagreement, the parties declare that they shall submit their dispute arising from the entering into, interpretation or performance of these Conditions to the Paris Commercial Court (Tribunal de Commerce de Paris) (France).