Terms of sale

Version in force as of [DATE DE MISE EN LIGNE]

1. Services offered for sale

The Provider makes available to the Client access to the Software defined above, enabling them, depending on the plan chosen, to:

• view, analyse and reply to reviews left by their customers or patients on online review platforms, in particular on their Google Business Profile;
• run campaigns to request reviews, by email, SMS or QR code;
• manage their Google Business Profile;
• create and publish a website for their business;
• track their business’s ranking on Google Maps.

The main characteristics of the Services are presented on the Provider’s Site. The Client is required to read them before validating any order. The choice and purchase of a Service are the sole responsibility of the Client.

2. Provider’s contact details

For any difficulty relating to the performance of this contract, the Client may contact the Provider at the following details:

SMILE MOOD SAS 12, rue de l’Espérance 91400 ORSAY

Email: contact@smilemood.fr

3. Orders

3.1. Placing an order

Before placing any order, the Client creates their personal user account in the application. By creating their account, they accept these terms and conditions, through the statement “By creating your account, you accept the terms and conditions”. It is up to the Client to select the Services they wish to order, as follows:

1/ The Client selects the plan they wish to subscribe to, the number of locations concerned and the payment frequency, monthly or annual.

2/ They complete the requested information and check the summary of their order.

3/ The Client enters their bank card on the page of the Stripe online payment service, then confirms their order by clicking “Confirm”.

When ordering any Service, the Client is able to check the details of their order and its total price, and to correct any errors before confirming their acceptance.

Any order placed and validated by the Client under the conditions and in the manner described above constitutes the formation of a distance contract between the Client and the Provider. Unless proven otherwise, the data recorded in the Provider’s computer system constitutes proof of the contract concluded with the Client.

3.2. Free trial

The Super and Ultra plans can be tried free of charge for 7 days. A bank card is requested at the start of the trial; nothing is charged on that day. At the end of the 7 days, the plan becomes paid and the first payment is taken on that day. The Client may cancel before that date, free of charge. The website option can also be tried free of charge for 7 days.

4. Cancellation and modification of the contract

4.1 Cancellation of the contract

A validated order cannot be cancelled retroactively. The Client may end their subscription under the conditions of article 10.

4.2 Modification of the contract

The Client may change their subscription at any time, from their user account. An upgrade to a higher plan takes effect immediately; the difference is invoiced on the same day, pro rata. A downgrade to a lower plan takes effect at the next renewal, at the new price, without refund. A plan that is no longer sold cannot be taken up again once left.

5. Client’s right of withdrawal

The Services are reserved for professionals, who order them at a distance for the purposes of their business. The Client does not benefit from the right of withdrawal provided for by the French Consumer Code.

6. Client’s obligations

The Client undertakes to:

• pay the Provider the price of their Service;
• provide the Provider with reliable information concerning their professional activity and keep the Provider informed of any change relating to it;
• comply with the terms of use of the Software made available to them;
• not disclose their login codes to third parties, with the exception of authorised members of their staff. In particular, they shall ensure the confidentiality of their credentials;
• only send review requests to people whose contact details they have obtained lawfully, in compliance with the regulations on personal data and on electronic direct marketing;
• not promise or offer anything in return for a review.

7. Provider’s obligations

The Provider undertakes to:

• make the Software available to the Client and ensure its maintenance;
• inform the Client by any means of any difficulty in performing their Service.

8. Performance terms

The services provided by the Provider are accessible from the SMILE MOOD application, at https://smilemood.io. Access to the application is secure, using the username and password chosen by the Client when creating their account.

The Free plan. A Client who has not taken out a paid subscription has free access to the application, with no time limit, enabling them to view their business’s Google reviews in one place and to reply to them by hand. The Free plan includes neither the Moodi assistant nor review requests.

The Super plan also includes, per month and per location:

• replies to reviews written by the Moodi assistant, an artificial intelligence, up to 100 per month, and automatic replies according to the rules set by the Client;
• review requests by email, SMS and QR code, up to 1,000 emails and 50 SMS per month;
• Smilemood reviews and the satisfaction questionnaire;
• management of the Google Business Profile.

The Ultra plan includes the Super plan, with limits raised to 500 replies written by Moodi, 3,000 emails and 200 SMS per month and per location, as well as:

• reviews from other platforms, including TripAdvisor and Pages Jaunes;
• the business’s website, created with Moodi;
• tracking of the business’s ranking on Google Maps.

The website option allows a Client on the Free plan to create and publish their business’s website. It cannot be added to the Super plan.

A Client on the Super or Ultra plan may add an additional SMS pack.

The Client’s usage rights, in particular their credits for SMS, emails and replies written by artificial intelligence, are limited according to the plan subscribed to. The Client can check the balance of their credit from the application. Unused Moodi and measurement credits are not carried over: they reset on the 1st of each month. The Client will also be able to change or cancel their subscription at any time from the application.

The replies and content suggested by Moodi are generated by an artificial intelligence. The Client reviews them and remains responsible for what they publish, including when they have chosen automatic publication.

Smilemood reviews and directory. Reviews left on Smilemood by the Client’s customers or patients are passed on to the Client. They may also be displayed on the business’s page in the Smilemood directory. The Client cannot modify a review. They can hide their entire page in the directory, but not a specific review. Reviews are published in accordance with our review publication rules, published on the website.

Website. The website created with Moodi is published on the Client’s domain name if they have one, otherwise at a smilemood.page address. It is hosted by Vercel Inc. The Client’s texts and photos remain theirs; the layout remains Smilemood’s. At the end of the subscription or of the option, the website displays that it is no longer online; the Client’s domain name remains theirs.

9. Pricing terms

9.1

Prices are expressed in euros, excluding tax, per month and per location. VAT is added at the rate in force.

• Free plan: €0;
• Super plan: €59 excl. VAT per month and per location;
• Ultra plan: €99 excl. VAT per month and per location, website included;
• Website option, with the Free plan: €59 excl. VAT per month and per location;
• Additional SMS pack, with Super or Ultra: €22 excl. VAT per month for 100 extra SMS per month, €110 excl. VAT per month for 500 extra SMS per month.

The creation of the website offered by Smilemood does not give rise to any set-up fee.

The price per location decreases with the Client’s number of locations: −10% from 2 to 4 locations, −20% from 5 to 9, −30% from 10. The reduced price applies to all of the Client’s locations. Above 20 locations, the price is set by quotation.

Annual payment entitles the Client to a 10% discount.

Subscriptions taken out on a plan that is no longer sold continue on the pricing terms that applied when they were taken out, as long as the Client does not change plan.

The Provider reserves the right to increase the price of its subscriptions. It will inform the Client by email, at least 30 days in advance.

9.2

The Services are paid by bank card, through the Stripe payment service, using the card provided by the Client when subscribing: by monthly payments, or by one annual payment if the Client has chosen annual payment. Invoices are made available to the Client in their account area. The first payment is taken on subscription, or at the end of the free trial; subsequent payments are taken every month or every year, on the same date.

9.3

In the event of a payment incident, the Client will be considered in default and will be liable, without any prior notification from the Provider, for late payment penalties calculated by applying the rate used by the European Central Bank (ECB) for its most recent refinancing operation, plus 10 percentage points, as well as a fixed indemnity of €40 for recovery costs, per invoice. The Provider may also suspend access to the Software without prejudice to any other course of action.

The Provider also reserves the right to request additional compensation if the recovery costs incurred exceed this amount, on presentation of supporting documents.

The Client may not withhold or defer payment of any sum due to the Provider, even in the event of a dispute or claim.

10. Term and termination of the contract

10.1

The contract is concluded for an indefinite period, with no minimum commitment. The Client may cancel their subscription at any time, without notice, with effect from the end of the current month. The Client is informed that any month started will be invoiced in full.

Cancellation of a subscription paid annually takes effect at the end of the paid year. The remaining months are not refunded.

At the end of the subscription, the Client’s account moves to the Free plan. The website stops. The Client’s data remains stored for as long as their account exists.

10.2

In the event of a serious breach by either party of its obligations, this contract will be terminated automatically seven (7) days after a formal notice to comply with its obligations, sent to the defaulting party by registered letter with acknowledgement of receipt, has remained without effect.

11. Liability and warranties

The Provider guarantees the Client the proper performance of the Service that is the subject of the contract.

The Provider is bound by an obligation of means in the performance of its Services. It endeavours to provide access to the Software 24 hours a day, 7 days a week. However, it cannot guarantee the continuity of access to its Software, its permanence, or its compatibility with each Client’s operating systems or browser. Consequently, the Provider cannot be held liable for any inaccessibility of the Software or interruption of the Services, whatever their nature (computer viruses, unlawful intrusion into an automated data processing system, permanent or temporary shutdown of the service, etc.), that may occur. In particular, the Provider will not be held liable for an interruption of the Internet connection due to the host or the domain name provider and, more generally, for any malfunction related to infrastructure and technologies developed by third parties.

The Provider reserves the right to modify or temporarily interrupt access to its Software, in particular for reasons of maintenance, updates or improvement, without any compensation. It endeavours to inform the Client in advance.

The Provider is under no obligation to verify the information provided by the Client when subscribing to the Services. The Client indemnifies the Provider against any action that may be brought against it on account of the data or information that the Client has provided, transmitted or chosen. Likewise, the Provider cannot be held liable for errors, anomalies or other difficulties caused by the inaccuracy of the information provided by the Client.

The Provider is only responsible for its own Services. Accordingly, it cannot be held liable on account of a service offered by a third party, in particular Google. In particular, the Provider cannot be held liable for the refusal of Google or any other platform to remove or moderate reviews, nor for a change in the access conditions imposed by these platforms. Likewise, SMILE MOOD is not responsible for negative reviews that may be published on the Client’s accounts. The Provider does not guarantee a number of reviews, a rating or a position in search results.

In any event, the Provider’s liability may only be incurred in the event of proven fault or negligence in the performance of its Service under the contract. Its liability will be limited to direct damage resulting from a breach of its contractual obligations, up to the amount excluding tax paid by the Client for the provision of the Services over the last twelve months.

12. Force majeure

The parties cannot be held liable if the non-performance or delay in the performance of any of their obligations, as described herein, results from a case of force majeure within the meaning of article 1218 of the French Civil Code.

13. Intellectual property

The Provider remains the owner of all intellectual property rights attached to its trademark, its trade name and its documentation, including where the latter is produced for the purpose of providing the Services to the Client.

This contract does not transfer any intellectual property rights to the Client in the Software made available to them. For the duration of the contract, the Client only has a personal, non-exclusive and non-transferable right to use the features of the said Software. Accordingly, the Client is strictly prohibited from altering the Software in any way, modifying it or making any reproduction or representation of it or of its documentation.

The Client remains the owner of the content they provide (texts, photos, logo). The layout of the website created with Moodi remains the property of the Provider (see article 8).

14. Confidentiality

The parties undertake, for the entire duration of this contract and without time limit after its expiry, for whatever reason, to maintain the strictest confidentiality, refraining from disclosing, directly or indirectly, any information, knowledge or know-how whatsoever concerning their co-contractor and its operating methods to which they may have had access in the course of performing this contract, unless the said information, knowledge or know-how has entered the public domain or its disclosure is made necessary under a specific regulation or an administrative or judicial order.

The parties undertake to ensure that this obligation is respected by all members of their staff concerned, for whom they vouch.

15. Partial invalidity

The possible annulment of one or more clauses of this contract by a court decision shall not affect its other provisions, which will continue to have full force and effect provided that the general balance of the contract can be preserved.

Should the performance of one or more clauses of this contract be made impossible due to its annulment, the Parties will try to come together to draw up a new clause whose spirit and letter will be as close as possible to the former clause, the other stipulations of the contract remaining in force.

Failing this, or if the general balance of the contract were to prove fundamentally upset, the Parties may, by mutual agreement formalised in writing, record the annulment of this contract in its entirety.

16. Applicable law – Disputes

These Terms and the transactions arising from them are governed by French law.

ANY DISPUTE THAT COULD NOT BE RESOLVED AMICABLY BETWEEN THE PROVIDER AND THE CLIENT, CONCERNING THE PERFORMANCE OF THIS CONTRACT, SHALL FALL WITHIN THE EXCLUSIVE JURISDICTION OF THE COMMERCIAL COURT OF ÉVRY (TRIBUNAL DE COMMERCE D’ÉVRY).

17. Address for service

For the purposes hereof, the parties elect domicile at their respective registered offices. Any change must be notified to the other party by registered letter with acknowledgement of receipt in order to be enforceable against it.

18. Processing of personal data

18.1 Processing of personal data by the Provider

The Provider, as controller, carries out processing of personal data relating to the Client’s legal representative and to the users of its account.

18.1.1 Data collected

In accordance with the principle of data minimisation, the Provider ensures that only the data necessary for the purposes of the processing are actually collected and processed. The following data in particular are considered relevant for the purposes set out below:

• identification of the Client: surname and first name of the legal representative and of the account users;
• contact details: telephone number, postal and/or email address;
• payment data: the bank card is entered with the payment provider Stripe; the Provider does not keep the card number.

18.1.2 Use of data

The processing of personal data carried out by the Provider is based on:

• the pursuit of its legitimate interests where the purpose is to:
• set up and administer the Client file,
• manage business relationships and develop its base of prospective customers,
• defend itself in legal proceedings,
• protect its business against fraud and cyberattacks;
• the performance of pre-contractual measures or of the contract where the purpose is the performance, payment, management and monitoring of the Services ordered;
• compliance with its legal and regulatory obligations where the purpose is to comply with its accounting and tax obligations.

18.1.3 Retention period

The Provider only keeps the data for the time necessary for the operations for which they were collected and in compliance with the regulations in force.

In this respect, Client data are kept for the duration of the contractual relationship, plus 3 years for the purposes of customer engagement and prospecting, without prejudice to retention obligations or limitation periods. Accounting records are kept for 10 years from the close of the financial year. The data are then deleted. By way of exception, they may be archived to handle ongoing claims and litigation and to meet the Provider’s legal and/or regulatory obligations.

18.1.4 Disclosure to third parties

The Provider does not transfer or sell any of the personal data collected for marketing purposes. Data passed on to third parties are only used to provide the Service. They are communicated to the Provider’s processors within the meaning of the GDPR, listed below, to the extent necessary for the performance of the Service:

• Brevo: sending of emails, France;
• Resend: sending of emails, United States;
• Twilio: sending of SMS, United States;
• OpenAI: Moodi’s artificial intelligence, United States;
• Anthropic: checking of texts by artificial intelligence, United States;
• Stripe: bank card payment, Ireland and United States;
• OVH SAS, 2 rue Kellermann, 59100 Roubaix: hosting of the application, France;
• Vercel Inc.: hosting of the websites, United States;
• Google: audience measurement of the website, United States.

Support is provided by email, without any third-party support tool.

Transfers outside the European Union are governed by the EU–US Data Privacy Framework where the service provider concerned is registered with it, and otherwise by the European Commission’s standard contractual clauses.

18.1.5 Exercising data protection rights

The natural person who is the data subject of the processing is informed that, under the conditions defined by the French “Informatique et Libertés” law and the European Data Protection Regulation, they have a right of access, rectification, restriction, portability and erasure of data concerning them. They also have the right to object at any time, on grounds relating to their particular situation, to processing of personal data whose legal basis is the Provider’s legitimate interest, as well as the right to object to direct marketing. Finally, the natural person has the right to set general and specific instructions defining how they wish their data to be used after their death. It is specified that exercising some of these rights may, on a case-by-case basis, make it impossible for the Provider to provide the Service ordered.

They may submit a request to exercise these rights by contacting the Provider. In the event of reasonable doubt as to the identity of the requester, the Provider may request proof of identity.

By email at the following address: contact@smilemood.fr;

or

by post at the following address: SMILE MOOD SAS, 12, rue de l’Espérance, 91400 ORSAY.

The natural person is also informed that they have the right to lodge a complaint with the Commission Nationale de l’Informatique et des Libertés (CNIL), the supervisory authority responsible for compliance with obligations relating to personal data.

18.2 Processing of personal data carried out as a processor

In the course of performing the Service, the Provider also stores and processes personal data managed by the Client itself: the contacts to whom the Client sends review requests (name, email address, telephone number), the reviews and the replies. The Provider then acts as a processor. These data are processed by the Provider on behalf of the Client, for the performance of the Services mentioned in the contract, for its duration. The Client determines, under its sole responsibility, the purposes of the processing entrusted to the Provider: the performance and management of the Services ordered. The Provider undertakes not to process the data entrusted to it for purposes other than those agreed with the Client, without the Client’s prior written authorisation.

For the public Smilemood review directory, the Provider acts as controller. For the collection of reviews and review requests, it acts as the Client’s processor.

The Provider, as a processor, undertakes to:

• process personal data in accordance with the Client’s documented instructions, unless the Provider is required to do so under the law applicable to the contract. In that case, it will inform the Client of that legal obligation before processing, unless the law concerned prohibits such information on grounds of public interest. If the Provider considers that an instruction infringes the GDPR or any other provision of Union law or Member State law relating to data protection, it shall immediately inform the Client in writing;
• guarantee the confidentiality of the personal data processed under the contract and in particular prevent their destruction, leakage, distortion, misappropriation, damage or disclosure to unauthorised third parties;
• store the data in compliance with French legislation and European regulations and keep the said data in accordance with the recommendations of the CNIL and/or the applicable legal obligations. In this respect, the Client is informed that the application’s data are hosted by OVH SAS (2 rue Kellermann, 59100 Roubaix), in France;
• only engage another processor after informing the Client, who hereby authorises those listed in article 18.1.4, and impose the same obligations on that other processor;
• ensure that the persons authorised to process personal data in the course of the services:
• undertake to respect confidentiality or are subject to an appropriate legal obligation of confidentiality,
• receive the necessary training in the protection of personal data;
• offer Services that respect the principles of proportionality, minimisation and limitation of personal data, ensuring that only relevant data are processed;
• put in place organisational and technical measures to ensure that its staff comply with their obligations, in particular in terms of controlling the persons authorised to access the data, securing access and traceability;
• ensure that transfers of data outside the territory of the European Union are governed either by an adequacy decision of the European Commission, or by the conclusion of the European Commission’s standard contractual clauses, or by any other appropriate safeguards provided for by article 46 of the GDPR;
• be able, during the performance of the Services, on first request, to report on and demonstrate all the procedures and measures for the protection of personal data, the minimisation of their use, and compliance with the above-mentioned legal requirements;
• inform the Client of any physical or technical incident relating to the security or confidentiality of personal data as soon as possible, and at the latest forty-eight (48) hours after becoming aware of it;
• assist the Client in carrying out the impact assessment and/or the prior consultation of the CNIL and, as far as possible, in fulfilling the Client’s obligation to respond to requests from data subjects to exercise their rights, and forward to the Client, upon receipt, any request from a data subject to exercise their rights;
• make available to the Client the documentation necessary to demonstrate compliance with all its obligations under the applicable regulations and to allow audits, including inspections, to be carried out by the Client or any third party mandated by the Client for this purpose, providing its full cooperation.

The Client undertakes to:

• ensure, beforehand and throughout the processing, compliance with the obligations laid down by French and European regulations on personal data, and in particular inform the people whose contact details it entrusts to the Provider;
• supervise the processing, including carrying out audits and inspections of the Provider.

When data subjects submit requests to the Provider to exercise their rights, the Provider will forward these requests to the Client by email upon receipt.

At the end of the Service, the Provider will, at the Client’s choice, delete all the data communicated to it or return them. The Provider will destroy existing copies, unless Union or Member State law requires the data to be retained. Account data are deleted 3 months after the account is deleted. Invoices are kept for 10 years, under accounting obligations. Smilemood reviews already published in the directory are removed along with the business’s page.

For any question or complaint relating to the personal data collected and processed by the Provider, the Client may contact the company SMILE MOOD at the following address: contact@smilemood.fr.

The Provider declares that it keeps a written record of all categories of processing activities carried out on behalf of the Client, including all the elements mentioned in article 30.2 of the GDPR.