GENERAL TERMS AND CONDITIONS OF THE APPYMAKER SERVICE
Terms and conditions of service GENERAL TERMS AND CONDITIONS OF THE APPYMAKER SERVICE
Article 1.- Definitions
Service refers to the APPYMAKER service used by the User for Customers, accessible by cell phone, whose functionalities are chosen and managed by the User on the APPYMAKER website. User means the person who has subscribed to the Service. Customer(s) designates the User's customers, recipient of the Service.
Article 2.- Object
The purpose of these general terms and conditions (hereinafter the "General Terms and Conditions") is to define the terms and conditions of access, definition and use of the Service offered by Alain Couchot 6 rue d'Armaillé 75017 Paris France, micro-entrepreneur, SIRET number 49153029100013.
Article 3.- Term - Choice of payment terms
3.1. The duration of subscription to the Service by the User takes effect from the date of opening of the Service of which the User is informed by e-mail, for the duration chosen by the User at the time of subscription.
3.2. The User chooses the duration and payment terms of the Service at the time of subscription. The duration and terms thus chosen by the User and the associated contractual conditions form an integral part of the General Terms and Conditions.
Article 4.- Service access conditions
4.1. The User must obligatorily be a trader, natural person or legal entity.
4.2. The User acknowledges having had the time, information, documentation and advice necessary to verify that the Service corresponds to his or her needs. APPYMAKER cannot therefore be held liable for any inadequacy between the Service and said needs.
4.3. The Service is subscribed to, created and managed by the User on the APPYMAKER website.
4.4. Validation of subscription to the Service entails unreserved acceptance of the General Terms and Conditions.
4.5. Customers can use the Service created by the User only on their cell phones either through cell phones with mobile web solutions (webapp/mobile site) or through native applications.
4.6. After online subscription to the Service, APPYMAKER provides each User with personal and confidential access codes consisting of a login and a password that will enable them to authenticate themselves and thus access the Service. The username and password will be sent to each User's email address, as indicated in the Service's online subscription form. The User is entirely responsible for the conservation of the identifiers and passwords and must take all necessary measures to ensure that they are not known or used by third parties, in any form and for any reason whatsoever. The User undertakes to inform APPYMAKER immediately of any use by an unauthorized third party. If the User forgets the password and/or login, the User must follow the procedures for resetting them on the authentication page of the APPYMAKER site.
4.7. When the Service is subscribed to and defined by the User, the Company must necessarily submit it to mobile application access providers ("Access Providers") for validation by the latter. The Customer is informed that the Access Providers may refuse, due to the content of the Software defined by the Customer, to allow the Service to be put online. The Customer undertakes to take all necessary measures to make the Service compatible with the requirements of the Access Providers. In the event that the Service is refused to be put online for reasons attributable to the Company, the Company will take the necessary steps to make the Service compliant in accordance with the recommendations of the Access Providers. In any event, in the event that, after having modified the Service, the Access Providers maintain their refusal to put the Service online, the Agreement will be terminated automatically without any further formality other than the communication to the Customer of the Access Providers' refusal to put the Service online. Such notification may be made by any means. If the refusal to put the Service online is the exclusive consequence of the Client's actions, in particular due to its refusal to modify the Service in accordance with the Access Providers' requests, the sums paid prior to the refusal will be retained by the Company, as a penalty clause. In other cases, the sums paid by the Client under the Agreement will be returned in full. As soon as the Service is validated by the Access Providers, the Company will inform the Client by e-mail as soon as possible that the Service is online.
Article 5.- Service features
The Service allows the User to set up customer loyalty and product promotion schemes. The Service allows the User's Customers, without limitation, to use their cell phone to: have a dematerialized loyalty card on their cell phone; access discount offers; follow the User's news; receive promotional or other messages from the User in push mode; participate in social games organized by the User; view the User's products; and quickly locate the User. The Service allows, without limitation, the User to use the APPYMAKER : to create mobile applications for terminals with IOS and Android operating systems; to create mobile sites for terminals with a web browser; to choose from among the visuals of the Service, proposed and developed by APPYMAKER, and thus adapt it to its business; to target its Customers in order to allow them to benefit from special discount offers; to launch social games; to manage several points of sale; to manage and update the Service and Customer information; to have access to the promotional elements of the Service (A3 poster, POS...) These lists are not exhaustive and may change according to the needs of the market, Users and Customers identified by APPYMAKER. Article 6.- Service management At the time of subscription to the Service on the APPYMAKER website, the User chooses the functionalities of the Service he wishes to set up and its ergonomics.
Article 7.- Conditions for the provision of the Service
7.1. APPYMAKER undertakes to make every effort to provide access to the APPYMAKER website and the Service 24 hours a day, 7 days a week. Nevertheless, APPYMAKER cannot guarantee the said access in the event of force majeure, breakdowns or maintenance interventions necessary for the proper functioning of the said site and Service, all without prior notice and without any right to compensation.
7.2. The User has subscribed to the Service in particular in that it offers functionalities adapted to his needs. APPYMAKER will adapt its Service to the ongoing needs of Users and their Customers, and will complete, extend and modify the Service in terms of content, functionality and appearance in order to meet these requirements. In the same way as mentioned above, the interruption of the Service resulting from such modifications will be made without notice or any right to compensation due to the User.
Article.- 8 Intellectual property and personal data
8.1. The Terms and Conditions and the use of the Service does not transfer to the User any ownership rights on any of the elements of the APPYMAKER. and the Service made available to the User hereunder.
8.2.The content included or accessible on and/or through the APPYMAKER website and the Service, including all text, graphics, logos, names, trademarks, designations, tabs, features, images, sounds, data, photographs, graphics, and any other material or software is the exclusive property of APPYMAKER or its partners and is protected by intellectual property rights and is subject to applicable laws and regulations. The content of the APPYMAKER. site and the Service may not and must not under any circumstances be downloaded, copied, altered, modified, deleted, distributed, transmitted, broadcast, sold, rented, licensed or exploited, in whole or in part, in any manner whatsoever, without the express written consent of APPYMAKER.
8.3. APPYMAKER grants the User a personal, non-exclusive and non-transferable right of use for his or her own needs under the terms and conditions herein. This right is granted for the duration of use of the Service and will cease at the end of the term.
Article 9.- User's personal data
9.1. User data and data collected during the use of the Service are hosted by APPYMAKER or its subcontractors. They are necessary to access and use the Service.
9.2. Any request for correction or deletion of the data thus collected should be requested by email to email@example.com.
9.3. APPYMAKER shall not be liable for the use of User or Customer data by any person who would have had access to it through no fault of his or her own. The User undertakes to comply with the legal standards (in particular, compliance with the provisions of Law No. 78-17 of January 6, 1978, known as the "Information Technology and Freedom" Law, as amended by Law No. 2 004-801 of August 6, 2004) governing the communication of personal information about its Customers and any other person in the context of the Service, as well as their use, in particular with regard to information of a directly or indirectly personal nature. In view of the foregoing, the Customer acknowledges : (a) that APPYMAKER, in its capacity as operator, may not be held liable in the event of use by the User of this information for purposes other than those provided for, accepted or tolerated by the regulations relating to information technology, files and freedoms and other related regulations; (b) that it shall be liable for damages caused to APPYMAKER, in the event that the obligations defined by the aforementioned regulations are not respected by the User, the User undertakes to defend and indemnify, within this framework, APPYMAKER against all actions or threats of actions or claims by third parties, whether judicial or not, concerning the information transmitted as well as its use by the User. In addition, in accordance with the provisions of this article, the User undertakes to make the necessary declarations and take the administrative steps relating to the regulations referred to in this article, for the data for which he is responsible. The information collected during the use of the Service is intended for the User, who reserves an exclusive right of use.
Article 10.- Obligations of the user
10.1. The User undertakes :
- (a) to use the Service, in accordance with the provisions of the General Terms and Conditions and/or any specific instructions communicated by APPYMAKER and for its own needs alone ;
- (b) not to use or authorize a third party to use the Service to transmit or receive elements or data of any nature whatsoever, in violation of the laws and regulations in force, which would be threatening, shocking, defamatory, contrary to public order or morality, or would infringe confidentiality undertakings, violate property rights or infringe the rights of third parties;
- (c) not to knowingly or negligently transmit any element via the Service that causes or is likely to cause damage of any kind whatsoever to APPYMAKER's computer systems or to other Internet users;
- (d) not to place links from its Service to other websites without the express written permission of APPYMAKER.
10.2. The User undertakes to collaborate with APPYMAKER, in particular by communicating to it the scope and nature of its needs, any information concerning in particular its organization, any special constraints that may have an impact on the provision of the Service, its technical and IT environment in particular, as well as more generally any information that may enable or facilitate the provision of the Service.
10.3. If the User's data changes, the User undertakes to inform or confirm APPYMAKER in writing and without delay so that APPYMAKER can update it.
10.4. The User declares to accept the characteristics and limitations of the Internet, and in particular acknowledges :
- (a) have the proper hardware and software and qualified personnel for the proper operation of the Service ;
- (b)be aware of the nature of the Internet network, and in particular its technical performance and response times for consulting, querying or transferring information ;
- (c) that it is its responsibility to take all appropriate measures to protect its own data and/or software from contamination by possible viruses circulating on the Internet.
10.5. The User undertakes :
- (a) to regularly back up all files or software installations to which it has access ;
- (b) to take appropriate measures to back up his information before modifying the Service, it being understood and accepted that no copies of the User's information and data are made on the server.
10.6. The User undertakes not to harm the image of APPYMAKER either by the nature or the promotion of its Service.
10.7. The User is responsible for the content and information provided, edited, or stored on the Service. APPYMAKER is under no obligation to inspect the content of the Service published by the User and therefore has no liability in this respect. The User irrevocably undertakes to guarantee v against any claim that may be brought before a court and to pay any costs, fees and/or sentences that may be imposed on it. The User undertakes without delay to make the necessary modifications at APPYMAKER's request in relation to the said claims.
Article 11.- Invoicing – bank data
11.1.The User accepts that their invoice be sent to them by email or directly to the account of the site APPYMAKER. This invoice shall be deemed valid without signature on the part of APPYMAKER.
11.2. The User is required to pay the amounts due for Use of the Service as they appear at the time of subscription and renewals. 1
1.3. The User is required to keep his/her bank information up to date.
Article 12.- Access restrictions
In the event of a breach by the User of the General Terms and Conditions, access to the Service will be immediately suspended, after an e-mail has been sent to the address indicated by the User, without prejudice to any damages that APPYMAKER may claim against the User.
Article 13.- Responsability
13.1. APPYMAKER undertakes to implement the means necessary for the regular provision of the Service.
13.2. APPYMAKER can only be held liable for a fault established against it, subject to the reservations set forth in the General Terms and Conditions. In this context, APPYMAKER shall only be liable for direct, personal and certain damages related to the fault in question, to the express exclusion of compensation for all damages and/or indirect prejudice. It is expressly agreed between the Parties that damages not resulting directly and exclusively from the non-performance by APPYMAKER of a contractual obligation are considered indirect damages, and in particular commercial loss, operating losses, loss of data, loss of turnover, profit, customers or expected savings, loss of profit as well as increases in overheads. APPYMAKER's liability may only be engaged, under the terms hereof, within the limit of an amount of damages that may not exceed the sums paid during the year preceding the establishment of APPYMAKER's liability, the prejudice and the causal link between them.
13.3. APPYMAKER cannot be held liable in the following cases :
- (a) failures of the Service resulting from events beyond its control ;
- b) failure of the User to comply with contractual obligations ;
- (c) non-compliance with APPYMAKER recommendations ;
- (d) Service interruption due to a scheduled or unscheduled maintenance operation ;
- (e) modification, suspension or interruption of the Service ;
- (f) case of force majeure ;
- (g) intervention of an unauthorized third party ;
- (h) of the possible detour as well as the conservation of the passwords, confidential codes and more generally of any information in sensitive matter for the User;
- (i) the reliability of data transmission, access times, possible restrictions or interruptions of access on Internet access networks and/or specific servers connected to the Internet network for which APPYMAKER is not responsible;
- (j) malicious intrusions by third parties into the APPYMAKER computer system;
- (k) for loss of User's data or unauthorized access to User's information by third parties;
- (l) by reason of the User's activities and their consequences, regardless of whether the Service has facilitated their exercise;
13.4.. The User guarantees APPYMAKER against any action, legal or other proceedings brought by a third party against APPYMAKER as a result of non-compliant use of the Service and shall indemnify APPYMAKER against the consequences of any action, legal proceedings brought against APPYMAKER or any liability incurred by APPYMAKER as a result of a third party or a Customer.
Article 14.- Cession
The General Terms and Conditions may not be transferred in whole or in part by the User without the prior written consent of APPYMAKER. APPYMAKER may freely transfer all or part of the User's subscription to the Service.
Article 15.- Referencing APPYMAKER may use the User's commercial name, logo(s) and/or distinctive sign(s), trademark, service marks and other commercial designations of the User as a reference in its communication media.
Article 16.- Convention of proof The Parties agree to consider messages received by fax or electronic means, and more generally electronic documents exchanged between them, as original writings within the meaning of Article 1316-1 of the Civil Code, i.e. they will have the same value as that given to the original. The parties agree to keep faxes or electronic writings in such a way that they can constitute faithful and durable copies within the meaning of Article 1348 of the Civil Code. It is expressly agreed between the Parties that in the event of contradiction between paper documents exchanged by post on the one hand and, on the other hand, faxes or electronic documents exchanged by electronic means or not, only paper documents exchanged by post will be authentic.
Article 17.- Privacy
17.1. The information, content, and form relating to methods, procedures, technical processes, databases, drawings, including the respective files of the Parties or any other information that will be transmitted by the Parties to each other shall be considered strictly confidential and is hereinafter referred to as the "Confidential Information(s)". Each of the Parties undertakes to use the Confidential Information it receives only for the purposes necessary for the implementation of the Service. Each of the Parties agrees not to exploit on its behalf, directly or indirectly, the Confidential Information received from the other Party.
17.2. In any event, and in the event that one of the Parties has non-confidential information relating to the other Party, it undertakes not to use it in a way likely to harm the Party concerned.
17.3. This obligation will continue for a period of two (2) years after termination, for whatever reason, of subscription to the Service.
17.4. In the event of a breach of the obligations hereunder, the Party that initially disclosed the Confidential Information may automatically terminate the General Terms and Conditions and its consequences without prejudice to any damages that it may claim from the defaulting Party.
17.5. The confidentiality of exchanges between the parties and the authentication of the User is ensured by the allocation and use of confidential codes (identifiers and passwords) and by the SSLV2 encryption of information exchanged between the User's terminal and the APPYMAKER server. The communication protocols used are those in use on the Internet.
Article 18.- Termination
In the event of failure by one of the Parties to comply with its obligations under the General Terms and Conditions, the Party that is the victim of the failure may, after giving it formal notice to remedy it within fifteen (15) calendar days by sending an email to the email address indicated at the time of registration concerning the User, and on firstname.lastname@example.org concerning APPYMAKER, avail itself of the termination of the Service, without prejudice to the payment of damages to its benefit.
Article 19.- General provisions
19.1. The General Terms and Conditions are the only ones applicable to the performance of the Service to the exclusion of all agreements, talks and other conditions, unless otherwise specifically agreed between APPYMAKER and the User. APPYMAKER reserves the right to modify the General Conditions at any time. In the event of a modification, the applicable General Terms and Conditions will be the terms and conditions in force at the time of subscription to all or part of the Service.
19.2. The User may not invoke any stipulation of his own general and/or special terms and conditions, correspondence and/or previous commercial proposals relating to the same subject as the General Terms and Conditions.
19.3. The General Terms and Conditions do not entail any exclusivity and each of the Parties remains entirely free to conclude agreements of the same nature with other partners.
19.4. The General Terms and Conditions may only be modified by an amendment dated and signed by the authorized representatives of the Parties. The appendices and/or Special Terms and Conditions modified or added to the General Terms and Conditions shall become an integral part thereof as soon as the Parties have definitively agreed together on their terms.
19.5. The mere tolerance of non-compliance with a provision of the General Terms and Conditions by one of the Parties shall in no way constitute a waiver or renunciation of rights or a modification of the General Terms and Conditions. The fact that one of the Parties does not implement one of the rights granted to it by the General Terms and Conditions does not mean that it waives this right for the future.
19.6. Each Party shall act in its own name and on its own behalf. It has neither the power nor the authority to bind the other Party in any way. None of the provisions of the General Terms and Conditions may be interpreted as creating, between the Parties, a subsidiary or any legal entity whatsoever.
19.7. Should any provision of the General Terms and Conditions prove to be wholly or partially null and void, such nullity shall not affect the validity of the rest of the General Terms and Conditions provided that the Parties undertake to replace such null and void provision with a lawful written provision corresponding to its spirit and purpose and having an equivalent economic effect.
19.8. The present general conditions are subject to French law. 19.9. Any difficulties relating to the validity, application or interpretation of the General Conditions will be submitted, in the absence of an amicable agreement, to the Commercial Court of Compiègne. This attribution of competence also applies in the event of summary proceedings, multiple defendants or appeal in warranty.