General terms and conditions of subscription

KOOVEA (hereinafter  » KOOVEA « ) is a simplified joint-stock company with a capital of €76,378 whose registered office is located at 101 Place Pierre Duhem, Centuries II, 34000 Montpellier, registered with the Montpellier Trade and Companies Register under number 834 870 701. The contact details of KOOVEA are as follows: Email: contact@koovea.fr – Web: www.koovea.com

KOOVEA has developed a turnkey solution for monitoring temperature measurements and other metrics (humidity, CO₂, etc.), operating with Bluetooth Low Energy (BLE) technology and on the basis of an interconnected technical environment composed of sensors and routers (respectively called « TAG » and « HUB ») allowing the supervision of temperature measurement data collected via the Koovea App tracking application, a software as a service (SaaS) solution (hereinafter the  » Solution « ).

These general terms and conditions of subscription (hereinafter the  » GTC ») constitute the basis of the contractual relationship between KOOVEA and any professional client who has taken out a subscription in order to benefit from the Solution and the services associated with it (collectively referred to as the  » Parties  » and individually referred to as the “Party”).

A « professional » means any natural or legal person, public or private, who acts for purposes falling within the scope of their commercial, industrial, artisanal, liberal or agricultural activity, including when they act in the name of or on behalf of another professional. Also, any subscription to KOOVEA implies the latter’s full and unreserved acceptance of the present GTC. KOOVEA reserves the right to update the GTC, in particular due to the modification or technical developments introduced by its subcontractors or imposed by the applicable legal framework and undertakes to inform the Client in advance, by any means. The GTC applicable between the Parties are the last accepted by the Client.

 

1. Definitions

 

Each capitalized term used in the present GTC (and in any schedules thereto) shall have the meaning set forth below, whether used in the singular or plural.

« Subscription » refers to the model of provision of the Solution proposed by KOOVEA consisting of a provision over a fixed period of time or an indefinite period of time and in return for the payment of a fee, to which the Client must necessarily subscribe in order to benefit from the Solution and the associated Services.

« Anomaly » means any design and/or hosting defect and in particular performance defect, bugs, errors manifested by operating difficulties preventing in whole or in part access to the Application by the Client.

« Blocking Anomaly » means any Anomaly that makes it impossible to use and/or operate a critical function of the Application and causes abnormal annoyance to the Client ;

« Serious Anomaly » means an anomaly that strongly restricts and causes a degraded mode of use of a critical function of the Application, in particular by making its execution abnormally more complex or abnormally longer;

« Minor Anomaly » means any Anomaly that is neither blocking nor serious, does not significantly affect the use of a feature of the Application or has a non-blocking impact on its use.

« Application » refers to the SaaS software referred to as the « Koovea App » developed and published by KOOVEA allowing the supervision of the Operating Data, including its updates and new versions.

« Client » refers to the professional who subscribes to a Subscription under the conditions herein.

« Client Account » refers to the account opened to the Client by KOOVEA allowing them to access the functionalities of the Application as well as the administrative functions with which they can grant access to Users, accessible via their username and password.

« Contract » means the contract for the supply of the Solution concluded between the Client and KOOVEA at the time of acceptance of the Subscription consisting of these GTC and the Quote(s).

« GTC« : refers to these general terms and conditions of subscription which defines the contractual terms and conditions applicable by default to provide the Solution.

« Quote » means any quote drawn up by KOOVEA in relation to the provision of the Solution, i.e. the initial subscription quote for the Subscription which defines the specific conditions and any quotes drawn up in the event of an order for additional Equipment during the Contract by the Client.

« Data » refers to all data transmitted by the Client and stored by KOOVEA in the context of the performance of the Contract, including the Operating Data ;

« Operating Data » refers to all the configuration and parameter data chosen by the Client in the Application and all the measurement data obtained in real time thanks to the Solution.

« Equipment » means the « TAG » sensors and « HUB » routers used to measure certain metrics relating to the Products such as temperature, humidity, CO₂ level, and to transmit this Operational Data to the Application.

« Product » means the transported product that will be subject to a temperature level measurement.

« Profile » means the Product profile to be configured by the Client on the Application (temperature thresholds, etc.).

« Services » refers to all the services provided by KOOVEA in connection with the provision of the Solution.

« Solution » means the global temperature measurement solution operating on Bluetooth Low Energy technology (BLE) consisting of the Equipment   and the Application, together forming a coherent, interconnected and functional whole.

« User » refers to any person authorized by the Client to use the Application under the sole responsibility of the latter (agent, employee, representative, etc.) and having access to the Application via an account and personal identifiers.

 

2. Purpose of the contract

 

The purpose of the Contract is to define the contractual conditions applicable to the provision of the Solution and the associated Services by KOOVEA to the Client in return for the payment of the price by the latter.

 

3. Contract documents

 

The contractual relationship between the Parties is governed by these GTC and the Quote(s) (together the « Contract »). In the event of any contradiction between the GTC and a Quote, the Quote shall prevail. Only these documents govern the contractual relationship of the Parties, to the exclusion of any other document such as the Client’s general terms and conditions of purchase. No annotation, in handwritten or electronic form, by the Client on the Quote(s) or on any other contractual document shall be valid between the Parties unless KOOVEA agrees in writing on such modification or mention.

 

4. Effective Date – Duration of the Contract

 

The Contract comes into force from the signing of the Subscription Quote and ends at the expiry of the Subscription agreed by the Client.

The Subscription comes into force from the date of activation of the services, which occurs on the day on which the Equipment leaves KOOVEA’s warehouses for the Client.

Depending on the choice made by the Client, the Subscription may be concluded :

• either for a fixed period of twelve (12) months and is, tacitly renewable for successive periods of twelve (12) months, unless terminated by either Party by registered letter with acknowledgement of receipt sent to the other Party, at least thirty (30) days before the end of each period;
• or for an indefinite period, in which case each Party has the right to terminate the Contract at any time by sending a written notice. The Client is nevertheless informed that any monthly period started will be invoiced. The agreed period of the subscription is indicated in the Subscription Quote.

 

5. Description of the Solution and Services

 

5.1.  General description of the Solution

With the provision of the Solution composed of software (« the Application ») and sensors (« TAG ») and routers (« HUB »), KOOVEA allows its Clients to obtain real-time temperature data of the temperature-sensitive Products transported, thanks to LTE/LTE-M cellular technology, coupled with GPS or cellular triangulation geolocation (Cell-ID), and by means of email or SMS notifications (optional). With the help of a configuration pre-established by the Client by type of Profile, the latter may, depending on the data recorded and stored on the Application, determine the disposition of the Products.

The TAGS and HUBs (together the « Equipment ») are configurable in advance by the Client via the Application according to the characteristics of the Product transported. The TAG can be placed in the Product box, in the pallet, or in the storage room. Temperature data is recorded and can be associated with GPS positioning (optional) thanks to the HUBs and be transmitted in real time to the Client.

 

5.2. Disclaimer on the operation and performance of the Solution

KOOVEA informs the Client that the Solution is provided to them without any guarantee of result or performance, in particular with regard to the processing of Operating Data, and in particular with regard to the completeness of the collection and reporting of information to the Client. However, KOOVEA will make its best efforts to provide and maintain the Solution in conditions that allow the processing of the Operational Data to be as efficient and complete as possible, without however being able to guarantee the total absence of error, degradation, alteration, or loss of said data.

The Client is also expressly informed that the proper functioning and performance of the Solution depends on:

• the configuration and set up of the Product Profiles on the Application according to the characteristics of the Products. For the Solution to work, the Client must configure and set up the Product Profiles from their Client Account on the Application: determination of temperature thresholds, choice of the location of the TAG (in the Product packaging, in the pallet or in the storage room).
• the installation and the proper and relevant positioning of the Equipment by the Client.

The Client is solely and entirely responsible for the configuration and set up of the Profiles and Equipment made available under the Contract, to the express exclusion of KOOVEA, which cannot be held liable in the event of a malfunction or any damage resulting from a poor physical installation of the Equipment and a misconfiguration on the part of the Client. However, KOOVEA’s technical service will be available to assist the Client in this context and training in the configuration will be provided at the beginning of the Contract. KOOVEA also provides the Client with a technical manual including configuration assistance.

The Client is also informed that it is solely responsible for any use of the Solution, whether by themselves of by their users. In particular, the Client is solely responsible for compliance with the appropriate safety conditions. It is therefore the responsibility of the Client to ensure that the Equipment complies with the applicable safety rules for the intended use.

 

5.3.    Services included in the Subscription

Each Subscription includes the following Services:

• Commissioning (creation of the Client Account; shipment of Equipment) ;
• Training for the use and configuration of the Solution, delivered remotely by videoconference, lasting 60 minutes maximum, and limited to 4 people ;
• Right to access and use the Application in software as a service (SaaS) mode ;
• Services related to the use of the Application: hosting and backup of Data, valuation of Data and establishment of statistics ;
• Provision of Equipment for rental ;
• Support and maintenance of the Solution: maintenance of the Equipment; Maintenance of the Application.

Any service not expressly listed above or indicated in the Special Terms and Conditions as included in the Subscription is in principle excluded from the scope of KOOVEA’s intervention hereunder. The Parties may, however, agree that KOOVEA will provide the Client with additional services, under the conditions of the article below. The Services are always provided subject to the Client’s proper performance of their payment obligations.

 

5.4.       Additional services

Services not included in the Subscription may be provided by KOOVEA by concluding a dedicated quote and applying separate invoicing. Unless otherwise stipulated, KOOVEA is subject to a general obligation of means in the context of the provision of additional services. If applicable, the deadlines for the execution of additional services are given by KOOVEA for indicative purposes only.*

 

6. Order

 

6.1. Subscription

Upon receipt of the Client’s request and depending on the needs expressed by the latter, KOOVEA sends the Client an email containing a web link giving access to a Quote including the specific conditions of the requested Subscription (duration, Equipment, activation fees, financial terms of the Subscription, amount of the deposit, estimated date of delivery of the Equipment, etc.) and these GTC.

In order for the Subscription to be effective, the Client must sign the Quote electronically online, approve the GTC and provide a SEPA direct debit authorization mandate, it being specified that the signature can only be carried out by the legal representative of the company or by a person duly authorized to sign contracts of this nature. Once the Subscription has been taken out, KOOVEA: – sends a summary order form to the Client ;

• creates the Client’s Client Account and sends them their username and password by email, as well as a link allowing them to access on the Application ;
• proceeds with the shipment of the Equipment in accordance with the terms of Article 8.1 hereof.

The Client expressly acknowledges that the signature of the Quote constitutes a firm subscription to the Subscription under the conditions set out therein and full and unreserved acceptance of these GTC, and therefore of the Contract in its entirety. By signing the Quote, the Client also acknowledges that they have benefited from all the information and advice enabling them to assess the suitability of the Solution to their needs. Also, any liability of KOOVEA will be excluded in the event of inadequacy of the Solution or if it does not comply with the Client’s expectations, in particular in terms of results and performance.

Unless otherwise stipulated, any Quote issued by KOOVEA is valid for one (1) month.

 

6.2. Ordering Additional Equipment

The Client may order new Equipment during the Contract by making the request either by sending an email at order@koovea.com address, or online. Upon receipt of the request, a Quote will be issued in accordance with the rates in force on the day of the request. The signature of the Quote by the Client constitutes a firm and final order and acceptance of these GTC.

Any order for new Equipment gives rise, on the day of the order, to the invoicing of a deposit and an activation fee. The cost of making the new Equipment available is also invoiced on a pro-rata basis for the current billing period. This cost includes the amount of the fee for the following instalments.

 

6.3. Refusal or invalidation of an order

KOOVEA reserves the right to refuse or invalidate an order for any legitimate reason, in particular in the event of an ongoing dispute with the Client regarding an order placed; a default of payment by the Client of an order placed; the noncompliance of the order with GTC ; an error in the Quote (in particular an error on the price); the ordered Equipment is no longer available in stock; the Client is manifestly insolvent…

The cancellation of an order has no impact on the Subscription, which remains in force under the same conditions.

 

7. Scope of the Subscription

 

The scope and billing of the Subscription depend on the quantity and type of Equipment made available to the Client, as well as the options subscribed to by the Client (COFRAC-certified TAGs, measurement frequencies, GPS geolocation, SMS alerts, telephone alerts, etc.). The initial scope of the Subscription corresponds to all the Equipment ordered by the Client when subscribing the Subscription.

The Client has the option of extending the scope of their Subscription during the Contract by placing an order for new Equipment from KOOVEA. Any new Equipment is made available for the duration of the current Subscription.

The Client may also reduce the scope of their Subscription by returning the Equipment that they no longer wish to use in accordance with the return terms and conditions provided for in Article 8.6 hereof.

 

8. Conditions for the provision of the Equipment

 

8.1. Delivery of Equipment

The Equipment is shipped to France and the European Union. The supply of the Equipment is possible subject to available stocks. If KOOVEA cannot provide the requested Equipment, it will notify the Client of the expected delay by email. Subject to the receipt of payment of the sums agreed in the Quote, the delivery of the Equipment is made to the Client’s premises or to any other address indicated by the latter when concluding the Contract, by a shipper or carrier chosen by KOOVEA. No change of address can be taken into account after shipping order.

Delivery is made free of charge in metropolitan France; delivery charges, specified in the Quote, are applied for other delivery territories.

The delivery times indicated by KOOVEA are always given for indicative purposes only, unless expressly stipulated otherwise. However, KOOVEA makes its best efforts to meet the deadlines. KOOVEA endeavors to inform the Client in the event of a delay and to indicate a new delivery date. Any delays do not in any way release the Client from their obligation to pay on time.

In any event, KOOVEA cannot be held liable in the event of delays in delivery resulting in whole or in part: from breaches by the Client of any of their contractual commitments, from an event attributable to the Client or from a case of force majeure. The Client is informed that the delivery of the order on time can only take place if they are up to date with their obligations, in particular payment, towards KOOVEA.

In the event of apparent defects or non-conformity found on the Equipment delivered, the Client must (1) immediately state their detailed reservations in writing on the carrier’s delivery note; (2) notify KOOVEA within 24 hours of delivery by any means; (3) send the carrier a confirmation of the reservations by registered letter with acknowledgement of receipt within three (3) days of delivery, a copy of which is sent to KOOVEA. Failure to comply with these provisions will result in any subsequent claim not being considered as a lack of conformity. In the event of proven non-compliance, KOOVEA undertakes to repair or replace the Equipment concerned.

The Client is informed that KOOVEA does not take care of the physical installation of the Equipment. KOOVEA provides the Client with a technical manual including installation assistance.

 

8.2. Risk Transfer

The Equipment travels at the Client’s own risk. Thus, the risks are transferred to the Client as soon as the Equipment is handed over to the carrier, i.e. the departure from KOOVEA’s warehouses, and this for the entire duration of the provision of the Equipment. In the event of return of the Equipment, the risks are transferred back to KOOVEA only when KOOVEA takes physical possession of the Equipment.

 

8.3. Deposit

The provision of Equipment gives rise, before any provision of equipment, to the payment of a deposit by the Client, the amount of which is indicated in the Quote. The deposit is paid by the Client at the time of the order and will be returned to them, in whole or in part, at the end of the Contract, subject to the return of the Equipment concerned in good condition and compliance with the return procedures provided for in Article 8.6 below.

 

8.4. Warranty – Maintenance

During the term of the Subscription, KOOVEA undertakes, free of charge, to repair or replace within a reasonable period of time any Equipment with defects due to natural wear and tear, it being specified that for these defects, the Client must notify KOOVEA by email of any defects found as soon as possible.

• If the defective Equipment is available, it will be replaced, at no extra cost, without payment of a new deposit or activation fee subject to compliance with the following procedure:
  • Creation of a suspected anomaly ticket by the Client by email at support@koovea.com or via the ticketing tool.
  • Remote confirmation of the defect by KOOVEA: the replacement Equipment is sent to the Client only if the defect is confirmed remotely by KOOVEA.
  • The Client will then have a maximum period of thirty (30) calendar days from receipt of the replacement Equipment to return the defective element under the conditions specified in Article 8.6. If, upon receipt of this element, it turns out that the claim was unfounded or abusive, KOOVEA will be entitled to invoice the Client the lump sum of €30 excluding VAT (per Equipment concerned).
• In the event of unavailability of the Equipment, the Subscription may be suspended if the available elements of the Solution do not cover the Client’s needs for, the time required to carry out the repair and return the repaired Equipment to the Client. In the absence of possible repair, the Client may terminate the Contract by operation of law by simple written notice without any breach being held against KOOVEA. If the Subscription can be continued without the defective elements, the amount of the Subscription will be reduced in proportion to the missing elements.

Any warranty is excluded in the event of fault on the part of the Client, such as negligence or use of the Equipment in a manner that is not in accordance with their intended purpose, the specifications for use or the present conditions. In such a case, the replacement and/or repair will be at the Client’s financial expense.

It is specified that only KOOVEA will be able to repair or replace the Equipment. Any intervention by a third party on the latter is strictly prohibited.

 

8.5. COFRAC calibration

The Client has the option of opting, for an additional price, for the provision of TAG equipment with a calibration certification issued by the COFRAC (French Accreditation Committee). In such a case, KOOVEA will send the Client each year within thirty (30) days prior to the expiry of the certification a new batch of TAGs to replace the TAGs whose certification has expired. The Client must then return the old TAGs in accordance with the return procedures provided for in Article 8.6 below. KOOVEA may, without any liability being held against it, remotely deactivate TAG equipment whose certification has expired.

 

8.6. Return of Equipment

For any return of the Equipment for any reason (lack of conformity upon delivery, reduction of the scope of the Subscription, warranty/maintenance, calibration, end of the Contract, etc.), the Client is required to inform KOOVEA in advance by email at support@koovea.com or via the ticketing tool. The Client will be sent a return slip by KOOVEA which must be included in the return package and according to their recommendations. Any return of the Equipment, regardless of the cause, must be made using the return slip issued by KOOVEA within a maximum period of thirty (30) calendar days.

The return of equipment returned by the Client is taken care of by KOOVEA. The Client undertakes to proceed by group shipment of the equipment concerned (limit: 1 transport note per return request from the client)

In the event of a compliant return, the deposit will be returned to the Client in accordance with the terms of Article 8.3 hereof.

The failure to return the Equipment in accordance with the applicable rules or the failure by the Client to return the Equipment to KOOVEA without justification will result in the issuance of an invoice according to the rates in force.

Any Equipment returned by the Client without justification will result in a termination of the Contract under the conditions set out in Article 19.

 

9. Terms of supply of the Application

 

9.1. Access Mode – Availability

The Application is accessible on the internet via the connection URL provided by KOOVEA (app.koovea.fr) and with the login credentials communicated to the Client. Access is limited to the Client and to Users authorized by the latter.

KOOVEA makes its best efforts to ensure that the Application is always accessible to the Client and Users, 24 hours a day, 7 days a week. The availability rate of the Application offered by KOOVEA is 99%. For the purposes of this clause, the service will be considered unavailable when no User is able to access the Application in its entirety. In any event, the delays allocated to the deployment of updates and maintenance interventions can in no way be considered in the calculation of the annual availability rate, if applicable. The Client shall ensure, before taking out a Subscription, that they have the necessary and appropriate hardware and other IT configuration elements to enable remote access and use of the Application. The Client is solely responsible for maintaining their IT environment in operational condition. The Client is informed that the Application only works with browsers: Safari 10 and above, Google Chrome 64 and above, Firefox 58 and above, Edge.

 

9.2. Rights granted to the Client and Users

KOOVEA hereby grants the Client a personal, non-exclusive, non-assignable and non-transferable right to remote access to and use of the Application, for the whole world and for the duration and within the limits of the Subscription subscribed to.

These rights are granted solely for the Client’s internal needs directly related to their activity and for the sole purpose of enabling the use of the Application by the Client and their Users in accordance with their purpose and the provisions of the Contract. To this end, KOOVEA also grants Users a right to remote access and use of the Application under the same conditions. Any other use or exploitation of the Application is expressly prohibited and may give rise to the termination of the Contract for breach by the Client without prejudice to any damages to which KOOVEA may be entitled to. The Parties expressly agree that the rights granted to the Client hereunder may not, except as expressly provided otherwise, be sublicensed or transferred to third parties for any reason or in any manner whatsoever.

 

9.3. User Accounts – Identifiers

KOOVEA provides the Client with a Client Account allowing them to access the Application. From their Client Account, the Client may create personal accounts for their internal Users without limitation. The Client is solely responsible for their own actions and those of their Users carried out on the Application via the Client Account and the Users’ accounts, and, more generally, for the way in which the Application is used.

Access to the various accounts is done by means of identifiers (login and password). The identifiers are unique, personal and strictly confidential to the Client and to each User. The Client is solely responsible for maintaining the confidentiality of the identifiers, to the exclusion of KOOVEA, and must take the necessary measures so that they cannot be used by unauthorized persons. KOOVEA disclaims all liability in the event of loss, illicit or fraudulent use of identifiers. Any action carried out on the Application by means of a given account is thus presumed to have been carried out by the holder of this account. The Client undertakes to notify KOOVEA without delay by e-mail of any voluntary or involuntary communication to third parties or theft of their username and password. In the event of loss or suspicion of fraud, a new password must be created immediately.

 

9.4. Application hosting

Under the terms of these General Terms and Conditions, KOOVEA undertakes to provide the Client with a hosting service for the Application. The Client is however informed that the Application will not be hosted directly by KOOVEA but with one or more third-party hosting providers of its choice, with dedicated infrastructures guaranteeing the security of the Data, in compliance with the laws and regulations in force. KOOVEA remains free to change hosting provider during the Contract insofar as this does not generate any degradation of service.

 

10. Support – Application Maintenance

 

KOOVEA provides technical support and maintenance of the Application within the framework of an obligation of means for the entire duration of the Subscription under the conditions detailed below. KOOVEA also provides the Client with updates to the Application.

 

10.1. Technical Support

KOOVEA provides the Client with a remote user support service, without on-site intervention, to provide an answer to practical questions concerning the use of the Application. Support requests are taken into account by KOOVEA according to the availability of the service as indicated below.

The technical service is available via the ticketing tool or by email at support@koovea.com from Monday to Friday (working days) and from 9 am to 6 pm, excluding public holidays. The technical service receives technical support requests and reports of Anomalies.

 

10.2. KOOVEA scheduled Maintenance

KOOVEA may be required to carry out scheduled maintenance interventions from time to time to ensure the proper functioning of the Application. In this case, KOOVEA will inform the Client in advance, unless there is an imperative need for the security of the Application or the Data. These interventions may make the Application temporarily unavailable, which the Client expressly accepts, without this constituting a breach by KOOVEA. KOOVEA will make its best efforts to carry out scheduled maintenance operations outside office hours.

 

10.3. Corrective maintenance

KOOVEA will intervene free of charge, for the entire duration of the Subscription contract, from the date of effective availability of the Application, to try to correct the Anomalies. All interventions will take place remotely.

Intervention times are counted from the receipt by KOOVEA of a request for intervention by telephone or by e-mail, depending on the availability of the technical department, as indicated above.

KOOVEA will make its best efforts to meet the following response times:

• In the event of Blocking anomalies: within one (1) business day ;
• In the event of Serious Anomalies: within five (5) business days;
• In the event of Minor Anomalies: within sixty (60) business days ;

The qualification of the level of severity of the Anomalies is carried out by KOOVEA.

If KOOVEA cannot resolve the Blocking Anomalies within the stipulated period, the Subscription will be suspended until effective resolution of said Blocking Anomalies. The corresponding sums will no longer be invoiced until these Anomalies are resolved.

KOOVEA’s intervention may result in the provision of a workaround solution pending the provision of a definitive corrective solution, which may, for example, consist of an intervention on the source code with no change to the functional coverage or a modification of the configuration. The provision of a functional workaround is equivalent to a resolution of the Anomaly.

An intervention report will be sent to the Client following the intervention by email. The request will then be closed.

 

10.4. Updates

The updates include the technical and functional improvements made by KOOVEA to the Application during the Contract. Updates are subject to the Contract from the time they are put into production. KOOVEA ensures the provision and deployment of updates and sends the related documentation to the Client if necessary. KOOVEA will inform the Client of the updates to be made by the latter, if necessary, when their deployment requires action on their part. KOOVEA cannot be held liable in the event of malfunction, unavailability, or non-compliance of the Application, or more generally of the Solution, regarding the provisions of the Contract resulting from a refusal or failure to implement an update required by KOOVEA. The deployment of updates may make all or part of the Application temporarily unavailable, which the Client expressly accepts, without this constituting a breach by KOOVEA.

 

10.5. Exclusions

KOOVEA shall not be obliged to provide maintenance under the conditions hereof in the following cases:

• the Client’s refusal to cooperate with KOOVEA in the resolution of the Anomalies and in particular to respond to questions and requests for information from KOOVEA or the Client’s inaction following a recommendation or request made by KOOVEA;
• use of the Application in a manner inconsistent with its intended purpose or any usage specification/rule ;
• unauthorized modification of the Application or the integration procedures by the Client or by a third party, and more generally, any unauthorized intervention by the Client, a User or a third party ;
• Client’s failure to comply with their obligations under the Contract ;
• implementation or use of any hardware, browsers, software packages, software or operating systems that are obsolete or not compatible with the Application ;
• failure of electronic communication networks, and more generally, the occurrence of a case of “force majeure”;
• deliberate act of damage, malice, sabotage, intentional misconduct of the Client or a person under their responsability ; – cyberattack on the Client’s system ;
• damage to software not supported by KOOVEA for maintenance purposes (third-party software);
• malfunctions outside the technical control of KOOVEA, such as malfunctions attributable to or affecting the Client’s IT environment.

Any intervention by KOOVEA following an Anomaly caused directly or indirectly by one of the above causes may be invoiced additionally.

In addition, the following services are expressly excluded:

• the reconstitution of data files in the event of accidental destruction/manipulation by the Client ;
• modifications or the addition of functionalities at the request of the Client ;
• changes or the addition of features or changes to the hardware configuration by the Client ; – training, advice or support other than as expressly provided herein ; – travel or intervention on the Client’s site.

KOOVEA may decide, at its discretion, to provide the services listed above. In this case, the services concerned will be subject to additional invoicing, unless otherwise agreed by KOOVEA.

 

11. Financial conditions

 

11.1. Price and payment terms

In return for the provision of the Solution, the Client will have to pay a global fee, the price of which depends on the number of Equipment made available to them by KOOVEA.

The fee is invoiced annually or monthly depending on the Subscription subscribed to, according to the prices applicable on the day of the order as set out in the price list in force. It is payable in due date and by SEPA direct debit on the 10th of the month. The 1st instalment is invoiced as soon as the services are activated and the following instalments on the anniversary date of this activation.

In the event of a subscription during the month, the month of subscription is invoiced on a pro-rata basis by SEPA direct debit on the 10th of the month. On this occasion, KOOVEA will also charge the activation fee and the deposit for the Equipment ordered. Prices are stated in euros and calculated excluding taxes. They are increased by VAT and any other applicable taxes, as well as any ancillary costs to be borne by the Client (activation fees and deposit in particular). Any change in the VAT rate may be reflected in the prices charged on the day of invoicing. The prices include, where applicable, the discounts and rebates granted to the Client. No advance payment will be discounted.

The price of the Subscription may be revised annually on the 1st day of the calendar year by application of the Syntec index, taking into account the formula P = (Po x S) / So, in which:

P represents the price excluding tax of the services concerned after the revision ;

Po represents the price excluding tax of the services on the date of entry into force of the Contract or on the date of the previous one revision ;

S is the value of the last published “Syntec Index” on the revision date ;

So is the value of the most recently published “Syntec Index” on the effective date hereof or on the date of the previous revision.

 

11.2. Default

Any failure to pay by the Client within the time limits set out in the Contract may result in:

• the suspension of the provision of the Solution in whole or in part ;
• Or the termination of the Contract in the event of non-payment within fifteen (15) days of the sending of a letter of formal notice to pay sent by KOOVEA by any means.

In addition, any amount not paid by the due date will give rise to the payment of late penalties due on the day following the agreed payment date. The penalties are equal to the interest rate applied by the European Central Bank to its most recent refinancing operation, plus 10 percentage points. Late penalties are payable automatically without the need for a reminder. Any delay in payment automatically entails, in addition to the penalties for late payment, an obligation for the debtor to pay a fixed compensation of €40 for recovery costs. The Client shall also reimburse all costs incurred in the contentious recovery of the sums due, including the fees of ministerial officers. Late payment penalties are payable without any formality or special notice. Under no circumstances may payments be suspended or subject to any compensation without the prior written consent of KOOVEA. Any partial payment will be charged first to the sums that are the oldest due.

If a due invoice is not paid, the other invoices will become due immediately.

 

12. Obligations of the Client

 

12.1. Payment

The Client undertakes to pay any amount due to KOOVEA pursuant to the Contract in accordance with the payment terms agreed between the Parties.

 

12.2. Collaboration

The Client is informed that active and loyal cooperation on their part is decisive for KOOVEA to provide the Services.

In this respect, the Client undertakes:

• to inform KOOVEA spontaneously and in a timely manner of any particularity of their company and their business likely to influence the provision of the Solution and the associated Services and on the performance of KOOVEA’s contractual commitments in general ;
• to respond to KOOVEA’s requests for information to the extent necessary for the provision of the Services ;
• to communicate without delay to KOOVEA any information or document that the latter may request within the limits of what is necessary for the provision of the Services ;
• to carry out all the tasks incumbent on them (communication of the necessary information and documents, responses to KOOVEA’s requests for information, cooperation in the context of commissioning and maintenance, etc.), and more generally, to carry out any action required by KOOVEA for the proper performance of the Services ;
• to alert KOOVEA spontaneously and in a timely manner to any event of which they are aware that may affect the provision of the Services during the course of the Contract ;
• to make available in a timely manner all the human and material resources necessary for the perfect execution of the Services, and to give any instructions to their staff so that they cooperate fully with KOOVEA.

KOOVEA may not be held liable in the event of non-performance due to a failure to cooperate by the Client under the conditions defined in this clause. Similarly, the Client may not under any circumstances claim the termination of the Contract in this case.

 

12.3. Correct use

The Client undertakes to use the constituent elements of the Solution (the Equipment, the Application):

• in accordance with the Contract, and within the limits of the rights granted therein ;
• in a normal, reasonable, non-fraudulent manner and in accordance with their intended purpose ;
• in compliance with the provisions hereof, the general terms and conditions of use, if applicable, and any rules of use made accessible by KOOVEA, in particular by means of display, publication, or notification on the site hosting the Solutions ;
• in compliance with the intellectual property rights of third parties and those of KOOVEA, and with all regulations in force.

The Client is responsible for complying with the rules of use of the Solution stipulated herein by the Users. Any breach by a User of any of these obligations will engage the Client’s liability. The Client will take all necessary measures to raise awareness among their staff and take the necessary measures for the proper use of the Solution by Users.

Regarding the use of the Application, the Client expressly refrains from:

• create or attempt to create derivative works from, translate, disassemble, recompile, compile, decompile, reverse engineer or attempt to reverse engineer the Application, except to the extent permitted by law ;
• assign, sell, rent, loan, sublicense, distribute, transfer, represent, broadcast, market or make available to a third party, directly or indirectly, the Application, in whole or in part, or authorize or designate a third party to do so ;
• modify all or part of the Solution and/or merge all or part of the Solution into other computer programs or provide anyone with the means to do so ;
• to transfer their accounts and/or identifiers to an unauthorized third party or, more generally, to make their accounts on the Application available to unauthorized third parties by any means whatsoever without the express, written and prior consent of KOOVEA ;
• disrupt or attempt to disrupt the proper functioning of the Application, in particular by integrating viruses or other malicious software and technologies likely to alter its functions in whole or in part ;
• circumvent measures limiting access to and/or use of the Application, such as robot exclusion protocols ;
• use robots or automatons (bots, spiders, scrapers or others) or any other automated process to access to the Application, without the express, prior written consent of KOOVEA ;
• to carry out data mining on the Application without the express, written and prior consent of KOOVEA ;
• extract and/or re-use a qualitatively or quantitatively substantial part of the KOOVEA ;
• to repeatedly and systematically extract and/or reuse all or part of KOOVEA’s databases ;
• to correct or have corrected by a third party any errors, bugs or other alleged non-conformities of the Application, KOOVEA reserving the maintenance of the Application, in accordance with the provisions of Article L. 122-6-1 paragraph 2 of the French Intellectual Property Code.

The Client undertakes, in the context of the use of the Equipment:

• to scrupulously comply with all conditions, precautions and advice for the use of the Equipment made available to them or communicated by KOOVEA and to use them in accordance with the rules of the art and any regulations in force ;
• not to make available to any unauthorized third party all or any part of the Equipment any way or to have third parties intervene on the Equipment without the express authorization of KOOVEA ;
• when the Equipment is identified by an identification plate or label in the name of KOOVEA or otherwise, not to obscure or dismantle these identification elements and to ensure that they remain legible.
• not to make any technical modification, even minor, to the Equipment and in particular not to carry out or attempt to proceed with any dismantling, reverse engineering of the Equipment or act of software penetration in the event that the Equipment includes an automated data processing system ;
• not to open, disassemble or modify the Equipment or their components, it being specified that the opening of the said Equipment is likely to be considered as a violation of trade secrets in view of the commitments made by the Client hereunder, and it being further recalled that any unauthorized reproduction of the Equipment  or its content is likely to constitute an act of infringement of the patents held by KOOVEA;
• to consider as strictly confidential and not to disclose to third parties any information, plans and other documents relating to the Equipment and/or its use and/or operation.

12.4. Return of Equipment

The Client does not acquire any rights to the Equipment and must return it to KOOVEA in any event. The Client waives, as such, any potential right of retention on any Equipment made available by KOOVEA. Failure by the Client to return the Equipment to KOOVEA without justification will result in the issuance of an invoice under the conditions set out in Article 8.6 and according to the rates in force.

 

13. Intellectual property

 

KOOVEA is and will remain the sole owner of all intellectual property rights (copyrights, patents, designs, trade secrets, databases, trademarks, distinctive signs, moral rights, and any other intellectual property rights or any other form of equivalent protection in force throughout the world), present or future, related to the elements of the Solution (Equipment,  Application and all their constituent elements), whatever their nature, to their updates, adaptations, modifications and improvements, as well as all the related know-how.

KOOVEA is the holder of a patent for the « Capture device, receiving device, treatment device and calibration device » issued on July 3, 2020, and a patent application for a « system and method for detecting case sealing » filed with the INPI (the French national institute of industrial property) on November 26, 2020.

The provision of the Solution does not confer any intellectual property rights on the Client in the elements of the Solution, other than temporary access and use rights granted under the terms and within the limits of this Contract.

Consequently, the Client undertakes to respect the intellectual property rights relating to the elements of the Solution and, more generally, not to use the elements of the Solution for purposes other than those strictly agreed upon hereunder. Any use or exploitation of any of the elements of the Solution made in contravention of these General Terms and Conditions may give rise to the exercise of any appropriate action by KOOVEA, in particular the exercise of an action for infringement. In addition, in the event of a violation of an intellectual property right of KOOVEA or one of KOOVEA partners, not corrected within seven (7) days after a formal notice sent by KOOVEA and remaining unanswered, KOOVEA may terminate the Contract for fault attributable to the Client without prejudice to any damages to which KOOVEA may be entitled to.

 

14. Guarantee of eviction

 

KOOVEA guarantees the Client against its own act in accordance with the provisions of Article 1628 of the French Civil Code. KOOVEA also guarantees the Client that the elements of the Solution made available to them do not include any element over which a third party could claim exclusive rights, and that KOOVEA holds all rights authorizing it to provide the Solution under the conditions herein.

As such, KOOVEA undertakes to defend the Client at its own expense against any infringement action by a third party invoking an intellectual property right that the Client’s exploitation of the Solution would have infringed, or an act of unfair and/or parasitic competition, provided that it has been immediately warned of it by the Client and that the alleged infringement is not the act of the Client or a person under the influence of the Client’s responsibility. Consequently, KOOVEA will be responsible for any damages and compensation to which the Client may be sentenced as a result of any of the abovementioned actions. If an element of the Solution is recognized, by a court decision with enforceable force, to constitute an infringement or if KOOVEA considers that it is likely that this element could be qualified as an infringement, KOOVEA may, at its option, and subject to the indispensable nature of this element for the provision of the Solution under equivalent conditions, either:

• obtain at its own expense the right for the Client to continue to use and exploit the element concerned ;
• replace the affected item or modify it so that it no longer infringes the rights of the third party ;
• subject to the Client’s agreement, reduce the scope of the Solution and the price of the Subscription accordingly.

 

15. Data

 

15.1. Ownership and Liability for Data

The Data transmitted by the Client and/or reprocessed by means of the Solution remain the full and entire property of the Client. The Client remains in any event solely responsible for their content and uses them in accordance with the rights of third parties and any applicable regulations.

KOOVEA cannot be held personally liable if the use of the Data, by means of the Solution or more generally in the context of the provision of the Services by KOOVEA, were to constitute a violation of a third party’s right (intellectual property right, image rights, or others), the publication of illegal content (insulting, defamatory, violent,  discriminating, etc.) or a breach of any regulation in force, such as the regulation on the protection of personal data. As such, the Client undertakes to defend KOOVEA at their own expense against any action by a third party or an authority invoking a right that the use of the Data via the Solution or the Services would have infringed or the violation of any regulation. Consequently, the Client will be responsible for any damages or other penalties or fines to which KOOVEA may be sentenced.

 

15.2. Access to Data – Permissions granted on Data

Access to Data is reserved for the Client. However, the Client is informed and accepts that KOOVEA may access it for the purpose of providing the Solution and the associated Services. As such, the Client grants, as necessary and throughout the duration of the Contract, to KOOVEA and its subcontractors a non-exclusive, worldwide royalty, free authorization, to host, cache, copy, display, transmit, and more generally to perform any operation on such Data for the purpose of providing the Services and in association with or in connection with the Services.

The Client also authorizes KOOVEA to use the Operating Data, for the whole world and for an unlimited period of time, solely for the purpose of developing, improving, feeding and enriching the Solution and/or artificial intelligence algorithms, as well as for establishing analyses and statistics, and retaining full ownership of the results without the Client being able to claim any right over them.

This authorization includes in particular the right, within the strict limits of the above-mentioned purposes, to carry out or to make carry out the following operations:

• reproduce, copy, record, store, duplicate and reprocess the Operating Data on all magnetic, electronic media, known or unknown to date, and by all digital or computer processes known or unknown to date, in all definitions and formats; – adapt, analyze, extract, transform, reformat, restructure, index, reference the Operating Data ;
• to incorporate the Operational Data in whole or in part into one or more databases and to have these acts carried out by any third party.

In the event that the Operational Data is considered to be an integral part of a database of the Client protected under the sui generis  right of databases provided for by European Directive 96/9 of 11 March 1996 and the French Intellectual Property Code, the Client expressly authorizes KOOVEA, for a period of ten (10) years, for the whole world, and for the purposes referred to above, to extract and/or reuse the Operating Data contained in their database, including if this constitutes an extraction and/or reuse of a quantitatively or qualitatively substantial part of their database, or a repeated and systematic extraction and/or reuse of all or part thereof. Any other use of the Data by KOOVEA is expressly prohibited.

The Client declares and guarantees that they have all the necessary authorizations to use the Data in the context of the Services and to grant the aforementioned authorizations. The Client undertakes to indemnify KOOVEA for all financial consequences that it may have to bear due to a breach by the Client about the above-mentioned guarantees concerning the Data. The Client will also ensure that they do not place any Data when using the Solution that would require KOOVEA to comply with specific laws or regulations other than those expressly covered by the Contract.

 

15.3. Data Security

Subject to the limits set out in Article 21 hereof, KOOVEA undertakes to implement any technical means, in accordance with the state of the art, to maintain the integrity, security and confidentiality of the Client’s Data, as well as the security of access to the Application.

 

15.4. Operating Data Information

The Client is expressly informed that the Operating Data that is reported on the Application is only provided for information purposes only and according to predetermined criteria that may vary according to the Client’s needs and the settings made by the latter on the Application. The Client is thus informed of the non-contractual nature of the Operating Data and may not under any circumstances seek the liability of KOOVEA in the event of inaccuracy of the same.

 

16. Confidentiality

 

The Parties agree that, the following information shall be considered as confidential information, it being understood that the following list is not exhaustive: any information relating to the content of the Contract or the discussions leading to its conclusion; any information relating to the methodologies, know-how, products, services, tools, software, hardware equipment, industry models and data of the parties; any information, in any form whatsoever, relating to the clients, prospects, business relations, partners, natural or legal persons, of the parties; any information relating to management, commercial operations, administrative, financial and marketing activities, their businesses and projects in the functional and technical fields, even that not expressly related to the provisions of the Contract; Data; any other information identified as confidential by the Parties. It is agreed that this confidential contract information constitutes a trade secret within the meaning of the French Commercial Code. Consequently, each Party undertakes not to disclose this information to third parties, other than employees or contractors with a need to know it, and to use the other Party’s confidential information only for the purpose of performing the Contract. Confidentiality does not apply to information: that is in the public domain; already known to the Party receiving them at the time of their receipt; the use or disclosure of which has been expressly authorized in writing by the other party; required to be disclosed by law or court order. This clause applies for the duration of the Contract and for as long as the relevant information remains confidential to the party disclosing it and, in any event, for a period of five (5) years after the end of the Contract. The Parties also undertake to ensure that these provisions are respected by their staff, and by any employee or third party who may intervene in any capacity whatsoever in the context of the performance of their respective obligations.

 

17. Processing of personal data

 

The Parties undertake to comply with their respective legal obligations about the protection of personal data, in particular obligations resulting from European Regulation 2016/679 of 27 April 2016 on data protection (GDPR) and the Data Protection Act of 6 January 1978 as amended.

KOOVEA is required to process personal data concerning the Client in the context of the provision of the Solution and the management of the commercial relationship with the latter, in its capacity as data controller within the meaning of the GDPR. Information relating to these processing operations is in Appendix 1 of this document.

 

18. Commercial reference

 

The Client expressly authorizes KOOVEA to use their trademarks and other distinctive signs for commercial reference purposes only, on its communication media, such as its websites and social networks.

 

19. End of the contract

 

19.1. Termination without fault

Either Party may terminate the Contract, regardless of any fault attributable to the other Party, at the end of the contractual period in the case of a fixed-term Subscription, or at any time in the case of an open-ended Subscription. The termination shall be carried out in accordance with the terms of termination provided for in Article 4 hereof.

The Contract may also be terminated early in the event of liquidation, judicial reorganization or judicial safeguard of either Party, under the legal and regulatory conditions in force, and subject to any public policy provisions in force, without compensation to either Party.

 

19.2. Termination for breach – Defense of non-performance

In the event of a serious or repeated breach of one or more obligations of the Contract or in the event of a breach of an obligation considered essential between the parties, the injured party may notify the other party of the termination of the Contract for breach by registered letter with acknowledgement of receipt, without prejudice to the possibility of claiming damages,  subject to the sending of a prior formal notice to perform the obligation in question within thirty (30) days by registered letter with acknowledgement of receipt and provided that the defaulting party has not remedied the situation within this period.

The Client’s obligation to pay is considered essential by the Parties.

In addition to the right to terminate under the conditions indicated above, KOOVEA may, in the event of non-payment or other failure on the part of the Client, automatically suspend the performance of its obligations, and in particular suspend access to the Solution and the Services in whole or in part until the Client performs.

 

19.3. Consequences of the termination of the Contract

Termination for breach by the Client automatically and as of right shall render all sums due by the Client to KOOVEA, immediately due and payable. As a result, the Client shall immediately pay any sums remaining due to KOOVEA for the provision of the Solution as if the Contract had continued until its end, without prejudice to any damages to which KOOVEA would be entitled to, and that KOOVEA shall retain any sums already paid by the Client, if applicable. The termination of the Contract, for any reason whatsoever, also obliges the Client:

• to cease all use of the Solution ;
• to return to KOOVEA all Equipment in their possession made available to them under the Contract within conditions set out in Article 8.6 of the Contract.

As soon as the Contract ends, for any reason whatsoever, the Parties may initiate the reversibility phase provided for in Article 20 below.

 

20. Reversibility

 

KOOVEA undertakes, at the end of the Contract, whatever the cause, to ensure the reversibility of the Client’s Data if the latter expressly requests it by email to admin@koovea.com or by registered letter with acknowledgement of receipt addressed to KOOVEA within fifteen (15) days after the end of the Contract. To this end, within fifteen (15) days after the Client’s request, the Parties must contact each other to organize the terms of this reversibility (terms of restitution, formats, possible deadlines) and to agree on the applicable financial conditions.

In any event, reversibility may only relate to the restitution of the Data, to the exclusion of any other service such as transfer of skills, know-how or intellectual property, or migration to a third-party solution or service provider. Reversibility must allow the Client to use the Data in a normal manner in accordance with the standards and rules of the art in this area. In any event, the Client must verify the integrity of the Data that has been given to it within fifteen (15) days after its return. At the end of this period, and in the absence of reservation made by the Client regarding the integrity of the Data provided to them the reversibility will be deemed to have been correctly carried out and KOOVEA may without incurring any liability, destroy all copies of the Data that it holds and that are on its information system. However, the Client is expressly informed that KOOVEA may keep a copy of the Operational Data in order to use it for the purposes provided for in Article 15.2 hereof.

 

21. Responsibility

 

The Parties agree that KOOVEA is subject to an obligation of means in the context of the provision of the Solution and the associated Services. KOOVEA may only be held liable for foreseeable damage caused by it, to the exclusion of any indirect damage, material or immaterial damage, whether or not consequential, any operating loss, loss of production, loss of earnings, loss of profits, loss of contract, damage to image, immobilization of personnel or equipment, and this without any joint liability with third parties who have contributed to the damage.

In any event, in the event that KOOVEA is held liable in any way whatsoever, the total amount of compensation that KOOVEA may be required to pay to the Client may not exceed, all sums and damages combined, the amount excluding tax of the turnover actually received by KOOVEA under the Contract during the past year,  regardless of the legal basis of the claim and the procedure used to bring it to a successful conclusion.

When KOOVEA is held liable for an additional service, KOOVEA’s liability is limited quantitatively to the amount before tax invoiced to the Client and actually collected by KOOVEA for this service.

The Client acknowledges that the limitations of liability stipulated above provide a reasonable allocation of risks and liabilities between the Parties in light of the context and the conditions, including financial conditions, hereof.

These limitations of liability do not apply in the event of gross negligence or fraudulent misconduct on the part of KOOVEA. In addition, KOOVEA’s liability whatsoever shall be expressly excluded for any damage resulting from:

• a breach by the Client, or by a User, of any of the obligations of this Contract;
• a defect or malfunction affecting or resulting from the Client’s environment in which the Solution is deployed, such as but not limited to defects, including security defects, affecting or resulting from the connection terminal (computer, mobile phone, tablet, etc.), the Client’s or a User’s computer environment with which the Application is used, the premises, equipment and Products intended to host the Equipment …
• use of the Solution in an environment or configuration that does not comply with KOOVEA’s technical requirements, or in connection with third-party programs or data not expressly endorsed by KOOVEA ;
• errors made by the Client or a User in the use of the Solution or any non-compliant use of the Solution in relation to its intended purpose, the Contract or any documentation, instructions, user manuals provided by KOOVEA, such as the loss, alteration, modification of the Client’s Data ;
• the inaccessibility, unavailability, suspension, interruption or slowdown of all or part of the Solution, and in particular the Application, due to the regional or global saturation of the Internet network, or at the level of the hosting provider’s server center, or due to maintenance interventions carried out by KOOVEA ;
• modification, intrusion, alteration, or unavailability of the Solution voluntarily carried out by a third party (person,virus, etc.) ;
• a lack of cooperation by the Client, in particular in the context of maintenance operations, the provision of erroneous or insincere information by the Client, the non-compliance or non-application of KOOVEA’s advice and/or instructions (in particular, recommendations to suspend use in the event of a problem observed);
• modification of the Application or the information contained therein without the prior consent of KOOVEA or, more generally, any unauthorized intervention on the elements of the Solution carried out by the Client itself or by a third party, such as the loss, alteration or modification of the Client’s Data ;
• any content or Data posted by the Client or a User on or through the Application ;
• any misconfiguration or misconfiguration of the Product Profiles by the Client or an improper installation of the Equipment ;
• damages resulting from the Products or affecting them, the Solution having as its sole purpose the measurement of the temperature data of the Products regardless of their nature and characteristics, and the temperature thresholds not to be exceeded being solely set and configured by the Client without intervention by KOOVEA ;
• any use of the Solution for illegal purposes (e.g., in the context of the transport of narcotic drugs, counterfeit goods, etc.);
• a case of force majeure.

 

22. Acceptance of risks

 

The Client declares that they have analyzed the suitability of the Solution for their needs in the pre-contractual phase, with the help of a qualified person to advise them if necessary. The Client declares that they accept the characteristics of the Solution, and in particular the risks and limitations inherent to the Internet, and acknowledge that the Internet presents risks and imperfections, which lead to temporary decreases in its technical performance, increased response times when using the Service online, or even to the temporary unavailability of servers. It is the responsibility of the Client to take all appropriate measures to protect their computer equipment and local network against threats, regardless of their origin, and in particular viruses, intrusion attempts by a third party or cyberattack.

 

23. Force majeure

 

Neither Party may be held liable to the other for any breach of its obligations if the performance of the Contract is delayed or prevented due to a case of force majeure within the meaning of Article 1218 of the French Civil Code and the case law of the French Court of Cassation.

The Parties agree in particular that the following events shall be qualified as force majeure, without this list being exhaustive: acts of war, acts of terrorism, riots, labor disputes, internal and external strikes, lock-outs, natural or health disasters, fire, water damage, lightning, legal or governmental restrictions, acts of administrative, governmental and judicial authorities not attributable to a fault of the defaulting Party,  lack of energy supply, partial or total shutdown of the internet network or any communication networks.

The Party affected by a case of force majeure shall immediately inform the other Party by the means it deems appropriate, confirmed by registered letter with acknowledgement of receipt, justifying exceptional circumstances that make it impossible to perform its contractual obligations, and producing all useful justifications.

In any event, the Party affected by the force majeure event shall make its best efforts to limit its duration and consequences.

In the event that the event giving rise to the force majeure event lasts for more than 3 consecutive months, either Party may terminate the Contract by registered letter with acknowledgement of receipt, unless otherwise expressly agreed between the Parties.

 

24. Insurance     

      

Each Party declares that it is insured for its professional civil liability with a company that is known to be solvent for all the consequences of the Contract. Each Party undertakes to maintain these guarantees throughout the duration of the Contract and to provide proof of them at the request of the other Party.

 

25. General stipulations

 

25.1. Evidentiary Contract – Electronic Signature

The Parties recognize the probative value of computerized data exchanged between them by any electronic means and through the Application. The Client thus expressly acknowledges the contractual value and validity of any acceptance made by them from the Application, and in particular once logged in using their credentials. The Client also acknowledges the enforceability of any action carried out by them on or from the Application, and once connected using their identifiers (validations, « clicks », etc.). In this respect, the connection logs of the Application will be authentic between the Parties and will be enforceable. The computerized records, kept in KOOVEA’s computer systems under reasonable security conditions, are considered as evidence of communications between the Parties.

The Parties further agree that the Quote, or any other contractual document, may be signed electronically by means of any electronic signature solution guaranteeing compliance with Articles 1366 and 1367 of the French Civil Code. The Parties   acknowledge that their electronic signatures have the same legal value as their handwritten signature and that electronic documents have the same legal value as paper document. In particular, the Parties acknowledge that documents signed electronically shall be admitted as originals before the courts and shall serve as evidence of their content, admissible, valid and enforceable under the same conditions and with the same probative value as a document that bears a handwritten signature or established on paper.

 

25.2. Sub-contract

KOOVEA reserves the right to subcontract all or part of the services provided under the terms of the Contract, which the Client expressly accepts. In this case, KOOVEA remains responsible for the proper performance of the subcontracted services vis-à-vis the Client. KOOVEA specifies that the hosting services provided to the Client will be subcontracted.

 

25.3. Independence of clauses

If one or more clauses or provisions of this Contract are held to be invalid or declared as such by law, regulation or final decision of a competent court, the remaining clauses and provisions shall remain in full force and effect.

 

25.4. Transmission of the Contract

The Parties undertake not to assign or transfer all or part of the Contract to a third party without the express prior consent of the other Party. Notwithstanding the foregoing, KOOVEA may freely assign all or part of the Contract in the context of any sale of the company or restructuring, such as merger, demerger, contribution or partial sale of assets.

 

25.5. Non-waiver

The failure of one of the Parties to take advantage of a breach by the other Party of any of the obligations referred to in this Contract shall not be construed in the future as a waiver of the obligation in question.

 

25.6. Applicable law – Language

The Contract is governed by and subject to French law. It is written in French. In the event that it is translated into one or more languages, only the French text will be authentic in the event of a dispute.

 

25.7. Disputes

In the event of a dispute or dispute of any kind relating to the validity, interpretation or performance of the Contract, the Parties will seek, before any legal action, an amicable contract and will communicate to each other all the necessary information to this end. In the absence of an amicable agreement, the courts of Montpellier having subject-matter jurisdiction shall have sole jurisdiction in the event of a dispute of any kind or a dispute relating to the formation or performance of the Contract, unless KOOVEA prefers to refer the matter to any other competent court. This clause applies even in the event of summary proceedings, incidental claims or multiple defendants or third-party claims, and regardless of the method and methods of payment, without any jurisdiction clauses that may exist in the Client’s documents to prevent the application of this agreement.

 

Appendix 1 – Personal data protection policy of KOOVEA as data controller in the context of the commercial relationship with the Client

 

1. Data collected