Touch & Sell Service General Terms
All software programs (the “Programs”) and services (the “Services”) (hereinafter jointly the “Deliverables”) are supplied by The App Lab, a simplified joint stock company with issued capital of €73,550, listed with the Nanterre Trade and Companies Register under number 512 948 875, the registered office of which is at 16 rue Aristide Briand, 92130 Issy-les-Moulineaux (“T&S”), in compliance with these general terms of services (the “GTS”). These GTS prevail over all other conditions and constitute the only conditions applicable to any Deliverable by T&S. The acceptance by the customer (the “Customer”) of any offer emanating from T&S implies full and complete acceptance of the conditions expressed herein. No condition proposed by the Customer is admissible without the written approval of a duly empowered representative of T&S.
Offer – Contract – Any offer emanating from T&S will be subject to these GTS and valid – in the absence of a specific time limit indicated in the offer – for a period of thirty (30) calendar days as of the offer issue date. Every contract will consist of the Customer’s order and these GTS (the “Contract”), and will be deemed to exist between T&S and the Customer at the earliest as of (i) the order’s written confirmation by T&S or (ii) the start of the fulfilment of the Customer’s order by T&S (with the “Confirmation” referring to either of the above), for a period until 31 December of the current year. It will then be renewed automatically for a period of one (1) year. However, notwithstanding article 11 hereof, each of the parties can terminate the Contract as of right and at any time, subject to providing the other party with three (3) months of advance notice, simply by sending a registered letter with acknowledgement of receipt, with the termination taking effect, after the aforesaid notice period of three (3) months, on the last day of the current month (the “Early Termination Date”), resulting in the reimbursement by T&S of the sums already collected with regard to the usage rights and maintenance services for the period after the Early Termination Date. Prior to any order, the Customer must be sure to have the appropriate required hardware, as indicated to it by T&S, in order to allow for access and usage of the Deliverables, while also ensuring the procurement and implementation of the equipment (hardware and software) needed for access to the Deliverables via the Internet (the “Prerequisites”).
Every Contract will be deemed to include any document agreed in writing between T&S and the Customer, that describes the technical and/or functional specifications of the Deliverables, notably including the T&S offer accepted by the Customer and, as relevant, the production approvals or, in the absence of an agreed document, the latest version of the documentation for the Deliverables supplied by T&S on the Confirmation date (the “Specifications”). Any modification relative to the Specifications approved by T&S that might later be demanded by the Customer will result in additional invoicing with regard to the aforesaid modification(s).
Price – Payment – The prices applicable to the Deliverables include an inclusive part corresponding with the set-up and roll-out of the Deliverables and a monthly amount corresponding with the usage rights and maintenance services relative to the Programs that must be paid, in advance, to T&S on an annual basis.
Prior to performing the Deliverables, T&S will invoice the Customer for the price thereof. The invoiced amount (net price plus VAT or other taxes / duties) will be payable at the latest thirty (30) calendar days after the invoicing date. Payments will be made in the currency indicated in the invoice. The Customer is not authorised to suspend payments to T&S nor to deduct any sum whatsoever that it believes to be owed to it for any reason whatsoever.
Any Customer late payment will result in the automatic application, without prejudice to other recourse, of penalties at the legal interest rate in effect, as published by the Banque de France, plus 2 points, calculated as of the due date and until the date of complete payment. Such late-payment interest will be owed without the need for any additional reminder.
In compliance with the provisions of article D. 441-5 of the Commercial code, any late payment will automatically result in the payment of inclusive compensation for recovery fees in the amount of forty (40) euros, without prejudice to the right of T&S to claim additional compensation if the recovery fees actually incurred are greater than the amount of this inclusive compensation, on the basis of receipts.
Set-up – Delivery – T&S will indicate the planned delivery or fulfilment date of the Deliverables (“Delivery Date”) in its Confirmation. As relevant, the Delivery Date is contingent upon the Customer’s prior validation of the production approval.
The Customer will inform T&S in writing of any non-compliance of the Deliverables relative to the Specifications at the latest within seven (7) calendar days of the Delivery Date. Otherwise, the Deliverables are deemed as definitively accepted by the Customer and the Customer waives the right to claim any non-compliance of the Deliverables, without prejudice to the provisions of article 6 (Guarantees).
Access to the Deliverables – Back office – T&S will provide the Customer with a detailed user guide on the Deliverables, technical information relative to the Deliverables (connection or downloading provisions), as well as with telephone assistance for the installation and set-up of the Deliverables. As relevant, the said assistance can be provided in the Customer’s premises, if the latter wishes, and will then be the subject of additional invoicing.
The access to the supplied Deliverables hosted by the T&S service provider is secured such as to protect, relative to third parties or users not authorised to access them, all Customer data transferred to T&S in connection with the usage of the Deliverables. T&S will provide the Customer with logins as well as personal and confidential access codes as required for the installation and set-up of the Deliverables, prior to the delivery thereof.
The Customer bears sole responsibility for the usage and safeguarding of the logins and passwords. Any loss or a voluntary disclosure of any element likely to allow a third party to access the Customer’s logins and/or passwords must be immediately indicated to T&S.
T&S and the Customer agree that the usage of the Customer’s account will serve as proof between them, notably regarding the date and duration of the usage of the Deliverables. All elements relative to the usage of the Customer’s account will be retained and archived by T&S that can then use, for the purposes of proof, any action, file, record, follow-up report, statistics on any medium, including media prepared, received or in its custody.
Hosting – Protection – Maintenance – T&S will provide the Customer with a hosting service that includes the monitoring of the server used to host all of the Customer data and to identify connections by the Customer’s end-users to the Deliverables, as well as the access, by the latter, to the Customer’s hosted data.
Each day, T&S will perform a backup of the Customer data, with each backup being retained for one week. Backup tests will be performed on a regular basis.
In case of loss or accidental erasing of Customer data, the latter can ask T&S to restore the said data, while bearing in mind that this restoration will not apply to data that are more
than one week old relative to the date of the Customer’s restoration request. The said data restoration service provided by T&S will result in additional invoicing by T&S to the Customer.
T&S also undertakes to provide the monitoring and maintenance of the hosted Programs, such as to insure their sustainability and availability, with the above being part of an obligation of best intents. The maintenance service provided to the Customer by T&S in connection with the Deliverables will include assistance by telephone or e-mail (from 9:30 AM to 6:30 PM, Monday to Friday), as well as corrective maintenance, upgrade maintenance and technical maintenance.
The corrective maintenance will only apply to the latest installed version of the hosted Programs and will include the correction or, by default and exceptionally, a workaround of any bug or defect preventing the normal usage of the Deliverables or the accesses to the said Deliverables that will appear within the framework of a compliant usage of the Deliverables as described in the user guide provided to the Customer by T&S.
The upgrade maintenance will include the supply of upgrades, including the supply of any new version that would include any new functionality.
The technical maintenance will only apply to the Programs made available to the Customer, thereby excluding the Customer’s Internet connection and IT configuration, for which it is solely responsible.
T&S will make every effort to ensure the 24-by-7 availability of the Deliverables, 365 days per year. However, this access can exceptionally be interrupted for reasons relating to scheduled upgrade maintenance. T&S will provide the Customer with at least 24 hours of advance notice prior to any planned upgrade maintenance, with the understanding that such scheduled maintenance operations will not exceed 30 hours per year.
Guarantees – T&S guarantees to the Customer that the Programs will operate substantially in compliance with the Specifications. T&S will make every effort to correct any error identified in the Programs for the duration of the Contract.
T&S guarantees that the Services will be provided with the necessary skill and care in compliance with trade practices applicable to Services of this type, that it will assign sufficient, technically competent and correctly trained personnel members, and that it will act in keeping with the profession’s best practices. The Customer’s only legal redress under this guarantee will be the rectification by T&S of any fault identified in the Services at no expense to the Customer, subject to written notification from the Customer to T&S within thirty (30) days following the performance date of the supposedly defective Services for the benefit of the Customer.
These guarantees will not apply to defects (i) caused by usage or operation of the Deliverables in a manner not anticipated or recommended by T&S in the user guide provided to the Customer, (ii) caused by any modification or alteration made to the Deliverables by any person other than T&S, (iii) that result from the exposure of the Deliverables to unusual physical or electrical demands, or negligence, or misuse or inappropriate use, or any accident, (iv) by compliance with any law or regulation or (v) that could not be envisaged on the basis of the state of the art and/or of the profession’s technical knowledge on the Confirmation date.
If the Customer informs T&S of any fault, in compliance with the aforesaid conditions, it will provide T&S with any information on the said fault that T&S may reasonably require and will comply with any suggestion or instruction previously provided it by T&S in order to diagnose and/or rectify this fault.
The correction of any fault, the repair or replacement of any Deliverable pursuant to the above paragraphs will not serve to extend the duration of the applicable guarantee.
Subject to contrary imperative provisions, the aforesaid guarantees only apply to the Customer, and not to the customers, agents or representatives of the Customer, and exclude any other guarantee. The Customer further acknowledges that it has not based itself, in any manner whatsoever, on any declaration made by or on behalf of T&S, whether orally, in writing, tacitly or by any other means, other than as formally included herein.
Customer obligations – From its personnel, the Customer will designate a person in charge of communicating with T&S.
Any processing, transmission, dissemination or representation of information or data via the Deliverables will be performed under this person’s sole responsibility.
The Customer undertakes not to process, disseminate, download or send information or data via the Deliverables unless the exploitation of the said information and/or data does not violate any intellectual property rights or other exclusive rights, or does not involve committing a penal offence. Similarly, the Customer will not transmit any content including computer viruses or other code, file or program that is intended to or will serve to interrupt, destroy or limit the functionality of any software program, computer or telecommunication tool, though this list should not be regarded as exhaustive.
The Customer will not hinder or disturb the operation of the Programs, of the T&S hardware nor the delivery of the Services and will comply with the required conditions, procedures and general rules communicated to it by T&S for the correct implementation of the Deliverables.
The Customer authorises T&S and grants to the latter, during the duration of any Contract, the right to list it as a Customer of T&S as well as the right to reproduce and present, to its prospects, on any media, the information and data shown in the opening page / homepage of the Deliverables supplied to the Customer, and to do so solely for purposes of demonstration and commercial solicitation.
Ownership of the software programs – Usage rights – Any Software provided by T&S to the Customer will be in object code only. Any reference to the term “sale” or “sold” refers to the granting of a usage licence for the Software and can under no circumstances be interpreted as a transfer of ownership or any other transfer of intellectual property rights relative to the said Software. The intellectual property rights attached to the Programs remain at all times the property of T&S or of its licensors. T&S hereby grants to the Customer, for the Contract duration, the non-exhaustive, non-transferable and non-licensable right to use the Programs in connection with the Deliverables. Programs developed by a company other than T&S are protected by their respective intellectual property rights and will be used under licence from their original developer.
Within the territory designated in the T&S offer that has been the subject of a Confirmation, the Customer has the non-exclusive right to use the Programs made available by T&S, which formally excludes the right (i) to translate, adapt, arrange or modify all or part of the Programs, to export them or merge them with other IT applications, (ii) to make any copy of all or part of the Programs other than in connection with the Deliverables, and (iii) to modify, notably by decompiling, altering or adapting, notably by translating, arranging or more generally performing any modification to all or part of the Programs.
The Programs must without fail be used under the conditions described herein.
Intellectual property rights and recourse – Assuming that the Deliverables have been used according to their intended purpose and without alteration and/or modification, T&S, subject to being immediately so informed by the Customer in writing of any dispute involving intellectual property between it and a third party with regard to all or part of the Deliverables and to the Customer’s assistance, will alone provide the Customer’s defence (management of the procedure and/or possible negotiations) and will assume, in case of sentence confirming the directly infringing nature of all or part of the Deliverables, all damages and interest that the Customer might be ordered to pay as a result of a legal decision that has become final, enforceable and judged as a last resort by the competent jurisdiction.
The aforesaid financial obligation will not apply (i) to elements of the Deliverables that have been developed or manufactured from drawings, specifications or instructions provided by or on behalf of the Customer, and/or (ii) to elements of the Deliverables provided by or on behalf of the Customer, and/or (iii) in case of an admission of liability or counterfeiting on the part of the Customer, any customer, agent and/or representative of the Customer and/or (iv) in case of settlement and/or the signing of a settlement by the Customer without having received the prior written approval of T&S and/or (v) to the extent that the dispute results from a combination of the Deliverables with any other product, system or network not provided by T&S.
Should this Article 9 be or become applicable in the opinion of T&S, the latter can opt for one of the following solutions depending on the feasibility of each: (i) modify all or part of the Deliverables in order to remove or discontinue the infringing nature, or (ii) replace all or part of the Deliverables with any other non-infringing product providing equivalent functionalities and performances, or (iii) obtain from the third party the right to use all or part of the Deliverables, or, if none of the aforesaid solutions is possible, (iv) terminate the Contract.
The above paragraphs contain the sole obligations of T&S relative to the Customer with regard to the infringement of third party intellectual or industrial property rights and replace, subject to contrary mandatory provisions, any other guarantee and/or obligation.
If T&S develops a Program or provides Services based on specifications, designs, models or other documents received from the Customer, the latter guarantees and undertakes to compensate T&S in case of violation of third party rights (including but not limited to the infringement of any intellectual property right).
Data – The data employed, processed, hosted, backed up or even stored by T&S on behalf of the Customer are and remain the property of the latter.
In case of T&S processing of personal data of the Customer’s end-users, T&S will perform this service solely in the capacity of a subcontractor. The Customer undertakes to strictly comply with all regulations relative to data protection, privacy or other applicable regulations (and notably, to carry out the disclosures and obtain the required authorisations) and, as such, guarantees T&S and will entirely compensate it for any damages resulting from any violation of the said laws and regulations.
Termination – In case of the Customer’s substantial violation of any of its obligations under the Contract, T&S can terminate the Contract ipso jure, with no formality being required, with immediate effect should the violation be irreparable or, in the opposite case, thirty (30) calendar days after a formal notice sent by registered letter with acknowledgement of receipt and that goes unanswered. The Contract’s termination will not affect the rights and recourse that T&S could claim against the Customer before the said termination.
Reversibility – In case of cessation of contractual relations for any reason whatsoever, T&S will, when requested by the Customer, provide a copy on any tangible medium agreed between the parties or make available to the Customer, at the request of the latter via a FTP server, the last situation of the data belonging to the Customer, provided that this request is made at the latest within thirty (30) days of the cessation date of the said contractual relations for any reason whatsoever.
Confidentiality – T&S and the Customer acknowledge that the technical, commercial and financial data to which either of the parties may have access during the Contract’s fulfilment, are considered to be confidential information. The receiving party undertakes not to disclose any of the aforesaid confidential information to any third party and not to use any of the aforesaid confidential information for any purpose other than as agreed by the parties and other than in compliance with the transaction envisaged in the Contract. The confidentiality obligations will remain in effect for three (3) years as of the Contract termination date, for any reason whatsoever.
Exclusions – T&S can under no circumstances be held liable for any damages occurring or resulting from any illegal and/or fraudulent and/or non-compliant usage of all or part of the Deliverables by the Customer or by any third party.
The programs developed or the services supplied by a company other than T&S will be licensed or provided by T&S exclusively according to the general terms of the original developer and/or service provider, according to the case, in particular the conditions relating to guarantees, compensation and support. T&S offers no guarantee, compensation or support for these software programs or services other than as formally indicated herein.
T&S cannot guarantee that the security mechanisms integrated into the Deliverables will protect them from any deliberate action intended to bypass or disable these mechanisms. The Customer acknowledges that such actions can occur and that T&S can in no way be held liable for them.
Liability limitation – T&S can under no circumstances be held liable to the Customer or to any other person for any indirect damage, loss, cost or expense (notably including loss of profits, business, contract, enjoyment or data). In the absence of contrary mandatory provisions, the total liability of T&S relative to the Customer for any type of complaint (notably, any form of compensation) initiated in application of or related to a Contract cannot exceed the amount actually collected by T&S under the said Contract.
Force majeure – Neither of the parties will be held liable for any default or delayed performance if this default or delay is attributable to force majeure. “Force Majeure” refers to and includes any fact or event independent of the desire of T&S after which T&S cannot reasonably be required to perform the obligations incurred by it pursuant to the terms of a Contract. These facts or events notably include natural catastrophes, war, civil war, uprisings, strikes, fires, floods, earthquakes, labour conflicts, epidemics, transportation embargoes, defaults or delays by any subcontractor of T&S and/or the impossibility of obtaining transportation, installations, fuel, energy, manpower, the necessary materials or components. The fulfilment time limit will be extended for the period of time reasonably necessary in order to overcome the effect of the performance delay resulting from the Force Majeure. Should the Force majeure continue for more than ninety (90) calendar days, either of the parties can terminate the Contract, without the liability of T&S applying in any way.
Applicable law and competent courts – Every Contract will be governed by and interpreted according to French law. The Nanterre Regional Court will have exclusive jurisdiction in order to decide on any dispute relating to or arising as a result of any Contract that the parties are unable to resolve amicably. The Customer must initiate any complaint and/or any proceedings relating to this complaint within eighteen (18) months after the Delivery Date of the Deliverable(s) resulting in the complaint.
After this time, any initiated complaint will be deemed as null and void.
Miscellaneous – The Customer cannot assign its rights or obligations under any Contract, without the prior written approval of T&S. T&S can nevertheless assign its rights or obligations in accordance with any Contract, without the Customer’s prior approval, or subcontract the fulfilment of any of its obligations under any Contract to any third party but will remain initially liable, in the latter case, for the obligations subcontracted in this manner. The failure of either of the parties to claim any provision of the Contract or the performance, by the other party, of any benefit of any of the Contract’s provisions can in no way be interpreted as a present or future waiver of the benefit of these provisions, nor will this in any way affect each party’s ability to claim any of these provisions. Any waiver by a party with regard to claiming any provision of any Contract must be formalised in writing, signed by a duly empowered representative and communicated to the other party. Should a provision of any Contract be deemed null and void, illegal or inapplicable, the validity and applicability of the said Contract’s other provisions will not be affected in any manner.