GENERAL TERMS AND CONDITIONS FOR USE AND SALE FOR FOQUS
TRY and FIT, a private company with a share capital of 130,000 euros, registered with the French Companies register (RCS – registre du commerce et des sociétés), under the national registration number (SIRET) 827 665 787, with its registered office located at 87 rue du Fontenoy, Roubaix (59100), France (hereafter “Company“) maintains a website, www.foqus.ai (hereafter “Website“) on which it markets a visual search engine called “FOQUS” (hereafter “Tool“) for professional customers with an online store (hereafter “Client“). Our Company and the Client may be collectively referred to as “Parties“, and individually “Party“.
These general terms and conditions for the sale of the Tool (hereafter “General Terms and Conditions“) are applicable to all sales of the Company to the Client. These General Terms and Conditions nullify and replace any other terms and conditions that may have been previously agreed upon and may appear on documents or agreed by any other means. Any use of the Tool and any order to our Company placed on the Website by the Client implies the acceptance of the General Terms and Conditions which will prevail over any other general or specific conditions that have not been expressly accepted by our Company.
Our Company may at any time amend, in whole or in part, the General Terms and Conditions and the applicable version of the general terms and conditions are those effective on the date of the use of the Tool or the order placed online by the Client.
1-Description of the Tool
The FOQUS Tool is a software as a service (“SaaS”) application for retail and e-commerce professionals. FOQUS has a toolkit that allows online stores to add artificial intelligence to their image databases.
The aim of these General Terms and Conditions is to lay down the terms and conditions under which our Company grants the Client a right to use the Tool as SaaS who accepts it. The right to use is granted to the Client and it can be used for several of the Client’s websites.
2-Access to the Website and the Tool
2.1. Navigation on the Website – registration for a client account
The Client navigates freely on the Website.
Access to the Tool is obtained after registering for a client account.
The creation of the client account is completed when the Client orders the Tool from our Company or another company also marketing the Tool.
For the creation of this client account, the Client must specify the login, password, family name, first name, phone and email address of the contact person within the Client’s company as well as the name and size of the company. The Client also specifies the professional position of the contact person within the company.
After completing the registration and placing the order, the Client receives an email confirming his registration for the Tool and a link to activate his client account.
The Client is then directed to the Tool dashboard.
The Clients hereby agrees to keep its logging details and API key confidential and shall not disclose this information to any third parties. The Client is solely liable for the access to the Tool thanks to his/her logging details and API key, unless there is evidence of fraudulent actions for which he/she cannot be held liable. In the event of loss, misuse or fraudulent use of his/her logging details and/or API key, he/she shall notify our Company immediately.
2.2. Continuous access
Taking into account the specific features of the Internet, our Company shall make every effort, and act with due care to provide for continued access to the Tool and Website, however, out Company cannot warrant continued access thereto.
Access to the Tool may be interrupted when performing a backup, update or maintenance operation. Therefore, our Company cannot be held liable for damages for interrupted access to the Website or Tool, resulting from, amongst other causes: a network malfunction or saturation or an interruption related to the backup of the Client’s databases, the update or maintenance of the Tool.
2.3. Security and backup
Our Company provides for the necessary security of the Tool in compliance with applicable safety rules/laws. Our Company shall make every effort, and act with due care when integrating in the Tool a fair level of security in accordance with the generally accepted standards in his business field for the Client’s data. Backups are completed according to the procedures recommended by our cloud host.
3- The Client’s use of the Tool
The Client refrains from misusing or attempting to misuse the Tool for purposes other than those described in Article 1 of these General Terms and Conditions.
The Client is solely liable for the use he/she makes of the Tool, and upon request, the Client shall compensate our Company for any damage, loss, loss of revenue that the latter could suffer as a result of a misuse of the Tool by the Client.
The Client shall not use the Tool for purposes that could harm third parties. For example, the Client shall not share files with the Tool including the following content:
- Contradicting public order, and good morals;
- Offensive, defamatory, racist, xenophobic, revisionist or injurious or negatively affecting the reputation of others;
- Inciting hatred or discrimination of a person or group of persons on the basis of their gender, origin or membership or non-membership of a particular ethnicity, nation, race or religion;
- Threatening a person or group of people;
- Pornographic or paedophile or zoophile;
- Inciting to commit a crime, violent acts, a crime or an act of terrorism or advocating war crimes or crimes against humanity;
- Inciting suicide;
- Allowing third parties to obtain directly or indirectly pirated software, software serial numbers, software that allows hacking and intrusion into computer and telecommunications systems, viruses and other logic bombs, and in general any software or other tools that infringes the rights of others and the security of persons and property; and
- Breaching private correspondence.
Suspension or interruption of the use of the Tool for above mentioned reasons shall not result in damages claims. The Client shall be held liable to our Company for the amounts owed during the remaining period of these General Terms and Condition’s duration.
The Client shall comply with the following requirements in order to use the Tool at its best performance:
– a recent and up-to-date web browser such as Google Chrome;
– a website with a stable, up-to-date, security-free CMS version;
– appropriate website hosting facilities; and
– website bandwidth appropriate for data transfer.
The Client hereby acknowledges that he/she is able to check that the Tool is in line with his/her expectations and functions with his/her IT environment.
Any costs in relation to the necessary equipment and connection to the Tool are to be borne by the Client.
Our Company offers four subscriptions (hereafter the “Subscriptions“) whose details and features are available on the Website:
- PREMIUM; and
Standard, premium and platinum subscriptions include a free trial of the Tool lasting one (1) month. At the end of the free trial period, the Client can decide whether to extend its Subscription. The Subscription will be paid pursuant to Article 8.
The Client hereby declares to be fully aware of all features of the Tool and is sufficiently informed prior to any order. Thus, on the basis of the information made available to him, the Client is solely liable for his order.
5- Information provided by the Client
The Client is solely liable for the accuracy of all the information he/she provides for when placing the order. Therefore, the Client hereby guarantees that this information is accurate and comprehensive. The Company cannot be held liable for any negative consequence resulting from incomplete, missing or erroneous information provided for by the Client.
6- Placing the order for the Tool
All orders for the Tool are placed on the Website or on marketplaces such as WordPress, Shopify, Prestashop, Magento, Microsoft, etc…
All orders on the Website are placed according to the following steps:
– The Client selects the Subscription he/she wants to order;
– He/she provides for the necessary information to order it;
– Once the information has been provided for, the Client confirms its order and reads and accepts the General Terms and Conditions thanks to a confirmation click;
– The Client pays for his/her order; and
– The Client receives an email confirming his/her order.
7- Term and renewal
Each Subscription is concluded for a period of one (1) year. This period starts at the confirmation of the order.
At the end of this period, the Subscription will be automatically renewed for one (1) year, unless written notice, with acknowledgement of receipt, not to renew the Subscription is given by either Party to the other less than thirty (30) days before the expiry of the current term.
In the event of non-compliance by either Party of any of its obligations under these General Terms and Conditions, the Subscription will be terminated immediately — without the intervention of the judicial authority – one (1) month after the non-failing Party sends a notice with acknowledgement of receipt, requesting to remedy the breaches. This termination does not waive the Client’s obligations under these General Terms and Conditions and any debt, plus late payment interest and fine provided for in Article 9. In the event of termination due to a fault of our Company, the Company shall refund to the Client the pro-rata amount of the Subscription from the effective date of termination to the end of the already paid period to remedy for the period the Client will not have access to the Tool.
In the event of termination, for any reason whatsoever, and at the request of the Client received within two (2) months of the effective date of termination, our Company shall provide the Client with all requested data in a reusable format. This service is billable as per the price set on the Website. Our Company shall definitely destroy any copy of the data, upon the Client’s request, within two (2) months of the effective date of termination.
Prices of each Subscription, set in Euros (€) for a one-year commitment, excluding taxes, are as stipulated on the Website on the day of the placement of the order.
The prices stipulated on the Website are monthly prices. The prices include discounts and rebates that may be granted on the basis of the length of the client relationship. A discount will not be granted in the event of an advance payment.
A price increase may take place each year. The new price will be communicated in writing to the Client, at least, thirty (30) working days prior to its implementation.
9- Payment terms
The price of the Tool is immediately due each month by direct debit and a proof of payment is sent by e-mail to the Client after each payment. The Client shall inform our Company, as soon as possible, of any changes required regarding the information of the direct debit mandate that was granted upon Subscription.
In the event of full or partial late payment, the Client must pay our Company a late payment penalty equal to the legal interest rate applied by the Central European Bank to its most recent refinancing operation plus 10 percent (%). This late payment penalty is calculated on the basis of the remaining amount due, excluding taxes, and runs from the due date of the invoice without any prior notice being required. In addition to the late payment penalties, for any sum not paid on its due date, including the advance payments, a lump sum of forty (40) euros shall be due to compensate collection costs.
10- Technical support and regular/corrective maintenance
Our Company will provide for technical support and corrective maintenance of the Tool and it shall be included in the price of the Subscription.
All requests for technical assistance and corrective maintenance shall be sent by the Client to the following e-mail address: [•]. Our Company’s technical support and corrective maintenance service can be reached Monday to Friday, from 9 a.m. to 12 p.m. and from 2 p.m. to 6 p.m.
Our technical support and corrective maintenance service covers any queries in relation to the use of the Tool, any request for updates and any advice on the use of the Tool. However, our Company shall not be required to carry out any changes requested by the Client.
In the event of a malfunction of the Tool, our Company shall perform all commercially reasonable efforts to promptly correct it. The malfunction shall be described accurately and in detail within the context of its occurrence. Our Company does not guarantee that reported malfunctions can always be corrected, especially if the malfunction is complex and requires extensive research.
Our Company cannot be liable for technical assistance and corrective maintenance in the following situations:
– in the event of a violation of our Company’s intellectual property rights;
– if the Client uses the Tool disregarding the instructions of our Company;
– in the event of a change to the Tool made by the Client; and/or
– in the event of a change made, by the Client or by a third party, to the data managed by the Tool.
All malfunction not directly or not solely caused by the Tool are expressly excluded from the scope of the technical assistance and corrective maintenance services. If requested by our Company, the Client shall update its computer software, including its Internet browser. Technical assistance and corrective maintenance services can only be provided on the basis of the settings required by our Company for the latest version of the Tool.
Our Company shall update the Tool when it deems necessary and our Company reserves the right to limit or temporarily suspend the use of the Tool during maintenance operations. The suspension or limitation of services for regular maintenance, resulting in small updates and changes, shall take place after 8pm and shall be limited to, at most, fifteen (15) minutes. All more important updates and changes shall take place on Friday evening and may suspend or limit services up to three (3) hours. Our Company shall inform the Client ten (10) days in advance of all improvements, operations and updates.
11- Data ownership
The Client remains the owner of all the data he/she uploads to the Tool and consents to the use of this data, solely, for the purposes intended for the Tool. By uploading the data to the Tool, the Client consents to the use of the data for the intended purposes of the Tool. As such, the Client hereby guarantees that the data he/she discloses by uploading it to the Tool does not breach any intellectual property right of a third party or any other applicable laws.
The Client also guarantees that any data that could be uploaded by its end users to the Tool does not breach any intellectual property right of a third party or any other applicable law and is aware of the consequences of such acts provided for under these General Terms and Conditions.
The Client shall not use the data uploaded by its end users for advertising purposes or for commercial purposes, and in any event, the Client shall not make it publicly available.
12- Protection of personal data
At all times, the Parties shall comply with regulation 2016/679 (“GDPR’) and any reform thereof as well as any adequacy decision and cancellation of adequacy decision, in order to safeguard high data protection safeguards.
Sharing personal data through the Tool is prohibited.
12.1. Client data
As part of its business activities, our Company may collect personal data of the Client’s employees (“Personal Data“) in order to manage Subscriptions. The Personal Data will not be processed for any other purpose, unless express and written consent of the Client is obtained prior to the processing. Our Company will inform the data subject of the purpose for the personal data processing, and at the request of our Company, the Client will make every effort, and act with due care, to inform his/her employee. This Personal Data shall not, under any circumstances be transferred to a subcontractor or any other third party.
All Personal Data is collected and processed by employees of our Company who are subject to an obligation to keep the Personal Data confidential and will be trained to protect this Personal Data.
12.2. GDPR obligations of the Client and the Company
The Client shall assist our Company in fulfilling the GDPR obligations when necessary, especially the obligations stipulated in Articles 12 to 22 of the GDPR.
In the event of a breach of the GDPR, our Company will immediately notify the Client in writing. The Client and our Company provide each other with mutual assistance in the event of a request from a national data protection authority in relation to the GDPR and the protection of data.
Upon request of a national data protection authority, the Parties make available any information, within a reasonable delay, to demonstrate compliance with the GDPR. In case of legal dissolution of the our Company, or if the Parties have so agreed in writing, the Client will assume responsibility for the answer to inquiries of any appropriate national data protection authority to demonstrate compliance with the GDPR.
Our Company warrants and undertakes that upon reasonable request of the Client, it will submit its data processing facilities, data files and documentation needed for processing to reviewing, auditing and/or certifying by the Client (or any independent or impartial inspection agents or auditors, selected by the Client and not reasonably objected to by our Company) to ascertain compliance with the warranties and undertakings in these General Terms and Conditions , with reasonable notice and during regular business hours. If the request will be subject to any necessary consent or approval from a regulatory or supervisory authority within the country of our Company, which consent or approval our Company will attempt to obtain in a timely fashion.
If local/national legislation restricts or prohibits any transfer of data or the performance of any obligations under these General Terms and Conditions, the Client will inform our Company as soon as possible and provide for assistance necessary to comply with local/national law. For example, upon request, the Client must provide copies of relevant national or local laws or references to those laws (if any, and excluding legal advice) of the country in which the Client is established.
12.3. Responsibility to third parties
Each Party shall be liable to the other Party for damages it causes by any breach of the GDPR or any other applicable data protection legislation. Liability as between the Parties is limited to actual damage suffered. Punitive damages (i.e. damages intended to punish a Party for its illegal conduct) are specifically excluded. Each Party shall be liable to data subjects for damages it causes by any breach of third party rights under these General Terms and Conditions . This does not affect the liability of the Client under its data protection law.
The Parties agree that a data subject shall have the right to enforce, as a third party beneficiary, all Articles of these General Terms and Conditions in relation to data protection against the Client or our Company for their respective breach of their contractual obligations, with regards to his/her personal data.
In cases involving allegations of breach by our Company, the data subject must first request the Client to take appropriate action to enforce his rights against our Company; if the Client does not take such action within a reasonable period (which under normal circumstances would be one (1) month), the data subject may then enforce his rights against our Company directly. A data subject is entitled to proceed directly against the Client that has failed to use reasonable efforts to determine that our Company, importing his/her personal data, is able to satisfy its legal obligations under these General Terms and Conditions (the Client shall have the burden to prove that it took reasonable efforts).
13- Access to data collected by cookies
Any data collected and stored by cookies on the Client’s website, may be accessed by our Company under the condition that the user consented to the collection, storage, process and access of its data. The user must be able to withdraw consent at any time. Therefore, the Client hereby commits to provide for an appropriate method on his website to obtain consent from the user, as well as clear and comprehensive information in relation to the cookies, its purposes and the access of the data by third parties, such as our Company, to comply with the following laws, as well as any reform thereof: European directives 95/46 and 2002/58, and the GDPR.
Our Company has a “professional liability” insurance with a company having an excellent reputation in its field.
Our Company shall make every effort, and act with due care, to provide for the Tool and to meet expectations which any reasonable person in this field of business would have. The Client hereby acknowledges that he/she shall only claim our liability by proving wrongdoing on our part. In all cases where our liability is likely to be demonstrated, it is limited to direct and material harm suffered by the Client.
In any event, the liability of our Company cannot be claimed for, and no compensation will be due, for the following events:
- actions/behavior of the Client rendering the fulfillment of its obligations impossible, such as the disclosure of inaccurate or incomplete information shared by the Client and/or contained in the documents sent by the Client;
- actions/behavior of third parties making our Company unable to fulfill its obligations; and
- events qualifying as force majeure, that is to say, any event beyond the control of our Company or the Client, which could not reasonably have been foreseen and making it impossible to fulfill one or more obligation(s).
The Client’s misuse of the Tool, inappropriate use or use that is not complying with the aimed purpose of the Tool, as well as non-compliance with regulations/laws, will be considered to be as negligent and/or faulty behavior.
16- Intellectual property
All intellectual property of our Company, such as software, studies, plans, techniques, prototypes, works, models, patents, know-how, databases on or in relation to the Tool, as well as trademarks and other distinctive signs, brought to the Client’s attention during the provision of the Tool, remains the exclusive property of our Company. These items are confidential and therefore shall not, for any reason whatsoever, be disclosed by the Client to third parties.
The Subscription does not transfer any intellectual property rights, of any kind, to the Client. Any full or partial reproduction/copy of the Website or the Tool, such as texts, comments, books, illustrations and images for non-private use is also strictly prohibited. Similarly, the Customer must not depreciate or negatively affect, in any way, the trademark(s), logos or other distinctive signs on our Company’s marketing materials.
The Client shall inform our Company, without delay, of:
(i) any current, potential or suspected counterfeit on its market or any other market in which our Company markets services, directly or indirectly, or any other breach of intellectual property rights in relation to the services stipulated in Article 1 of these General Terms and Conditions; and
(ii) any claim or potential of claim by a third party claiming that the sale of the services breaches a company’s trademark or other third party intellectual property rights.
In the event of an alleged infringement or intellectual property claim, and upon request of our Company and at our Company’s expense, the Client shall take all necessary steps to assist our Company in taking legal action or defending itself in a legal action in relation to the infringement or claim. Our Company remains the sole decision maker for legal action or transactions related to the violation or claim.
The Client expressly authorizes our Company to show its name and/or logo on its business documents and/or websites in order to make list it as one of its reference partners.
For the purposes of these General Terms and Conditions, the term “Confidential Information” refers to data or proprietary information, that is not generally known by the public, or has not yet been revealed, whether in tangible or intangible form, regardless of the terms and circumstances of their disclosure, whenever and however disclosed, including, but not limited to the following information: (i) technical information, processes, procedures, formulas, improvements, technologies or methods; (ii) concepts, reports, data, know-how, work in progress, models, photos, development tools, specifications, software, source codes, object codes, schemes and databases; (iii) marketing strategies, plans, financial information or projections, operations, sales estimates, business plans and performance results related to past business activity; (iv) trade secrets, customer lists; and (v) any other information that should reasonably be considered Confidential Information. If any doubt remains about the confidential nature of information that could be considered Confidential Information to guarantee the competitiveness of the Tool, but which is not mentioned in the list above, the Client shall ask our Company for confirmation regarding the confidentiality of that information.
The Client shall not use or disclose, directly or indirectly, in his own interest or on behalf of a third party, the Confidential Information provided to him by our Company, unless: (i) this is necessary to carry out an obligation stipulated in these General Terms and Conditions and the Client has obtained consent in writing of our Company for the disclosure and/or use of this Confidential Information; (ii) Confidential Information is known to the public at the time of disclosure or legally available; and (iii) disclosure is required by law, regulation or an order of an authority (including any regulatory or governmental body) to be disclosed by one of the Parties, provided that, as far as possible, the other Party is notified sufficiently in advance of the proposed disclosure.
In addition, the Client must take all reasonable precautions and act with due care when using Confidential Information in order to protect its secrecy.
In the event of non-compliance and/or breach of the above mentioned confidentiality obligations, damages, including compensation for incurred damages and loss of profit, will be owed to our Company.
The obligations contained in this Article, will continue for a period of five (5) years from date of end of any contractual relationship between the Parties.
The Client hereby agrees to the use of e-mail to share information regarding the placing or execution of the placed order and for all communication necessary under these General Terms and Conditions.
The data recorded by our Company at the time of the placing or execution of the order is proof of all transactions with the Client.
The Parties may use a printed e-mail to prove the content of their communication having taken place during the execution of these General Terms and Conditions.
20- Frustration of purpose (imprévision)
Under these General Terms and Conditions, the Parties agree to waive their rights under the French statutory regime of frustration of purpose (imprévision) provided for in Article 1195 of the French civil code. Therefore, the Parties waive their right to renegotiate these General Terms and Conditions if the performance of their obligations have become excessively difficult due to circumstances unpredictable at the time of the acceptance of these General Terms and Conditions. Thus, the Parties are fully aware that they commit to the performance of their obligations even when the fair balance between them as provided for in these General Terms and Conditions is negatively affected due to circumstances unpredictable at the time of the signature of these General Terms and Conditions.
21- Law applicable and resolved litigation
Any dispute relating to the interpretation and execution of these General Terms of Conditions is governed by French law.
In the event of a dispute between the Parties on the validity, binding effect, interpretation, enforcement and/or termination of the relationship between the Parties resulting from the acceptance of these General Terms and Conditions, and before any claim to judiciary courts, the Parties shall seek amicable settlement of that dispute within one (1) month and the settlement shall be formalized by a written document.
In the absence of an amicable settlement, any dispute relating to the validity, binding effect, interpretation, execution and/or termination of these General Terms and Conditions will be submitted to the Lille (France) Commercial Court.
22- Various stipulations
Any breach of these General Terms and Conditions not addressed at any given time cannot be construed as a waiver of the obligations or rights in the breached clause.
In the event that any of the clauses of these Terms and Conditions are declared null or void or contrary to public order, the other clauses will remain in force.
In the event of a discrepancy between these General Terms and Conditions and any other specific terms and conditions agreed between the Parties at the time of the order, the latter will prevail. In addition, in the event of a discrepancy between these General Terms and Conditions, specific terms and/or conditions agreed between the Parties, and one of the articles on the protection of personal data, solely the latter will prevail.