The purpose of this document is to define the terms and conditions of use of the Service provided by OCITO, a French company with its head office at 28 rue de Châteaudun 75009 Paris, FRANCE (hereinafter “OCITO”) consisting in granting access to the Kiwapp Solution in SaaS mode.
By registering on the website Kiwapp.com or using the Service, the Client acknowledges that he/she/it has read, understood and agreed to the entirety of these Terms of Service.
In this Agreement, words or phrases beginning with a capital letter shall have the following meanings:
"Client Application(s)" means the Client’s application(s), created, implemented and/or managed by the Kiwapp Solution.
"Data Base" means all data, organized for use by the Kiwapp Solution to provide the Service, the structure of which is owned by OCITO and its contents property of the Client.
"Order Form" means the document to which these Terms of Service are annexed. The Order Form indicates the name and address of the Client, the Contact Email Address, as well as the Subscribed Offer.
"Client" means the individual or legal entity with whom OCITO entered this Agreement and whose name and address appear on the Order Form. The Client and OCITO are hereinafter collectively designated as the “Parties” or individually as a “Party”.
"Agreement" means the agreement constituted by these Terms of Service (and any potential subsequent amendments), the Order Form and any written amendment signed by the Parties.
"Documentation" means all documents that may be downloaded free of charge in electronic form from the website www.kiwapp.com, describing the functionalities of the Service and the Kiwapp Solution.
"Contact Email Address" means the Client’s email address, which appears on the Order Form.
"Subscribed Offer" means the offer subscribed by the Client, which appears on the Order Form (and then possibly modified by the Client). The Service is provided through two separate offers: “Free” and “Pro”. The functionalities provided under these two offers differ and are described on the website www.kiwapp.com.
"Platform" means all servers made available to the Client and the Users and the Client by OCITO in SaaS mode, at the address provided by OCITO, hosting the Kiwapp Solution, as well as any other component of the Service and the Data Base.
"SaaS" (Software as a Service) means the remote delivery model of the Service’s functionalities, using the Internet technologies and accessible via the Internet.
"Service" means the grant of access to the Kiwapp Solution by OCITO and the use of the Kiwapp Solution in SaaS mode by the Client, under the terms and conditions set out in the Agreement.
"Kiwapp Solution" means the Kiwapp software, as well as any related applications, developed and published by OCITO.
"User" means an individual who is authorized by the Client to use the Service under the terms and conditions set out in the Agreement and in the Documentation.
2. Purpose of this Agreement
The purpose of this Agreement is to set out the conditions under which :
- OCITO provides the Service to the Client and grants the Client, who accepts it, a non-exclusive and non-transferable right to use the Kiwapp Solution in SaaS mode;
- The Client undertakes to pay the contractual fee and to comply with the Terms of Service.
3. Term of the Agreement
This agreement will come into force as of the payment of the first subscription period, under the conditions set out hereinafter (see Article 9 related to the “Financial Conditions”) and will remain in force until its termination by either Party.
Monthly or annual subscriptions will renew for successive periods of the same duration by tacit accord, unless terminated by either Party by registered letter with acknowledgment of receipt, with a notice period of fifteen (15) days before the renewal date.
4. Fitness of the Service to the Client’s needs
The Client declares that it has - under his/her/its sole responsibility – been able to study the functionalities of the Service and of the Subscribed Offer and that he/she/it could ask OCITO all relevant questions to verify the technical and functional fitness of the Service and of the Subscribed Offer to his/her/its needs.
The Client shall not make any claim on the grounds that the Service, the Kiwapp Solution, their functionalities, their mode of operation or the prerequisites for their use are not satisfactory or pose any problem.
The Service and its terms of access and use are described in the Documentation.
OCITO provides the Service to the Client 24 hours a day, 7 days a week during the term of this Agreement and within the limits set out in this Agreement.
6. OCITO’s obligations
OCITO undertakes to use all reasonable technical and human resources to provide the Service, subject to (1) the full payment by the Client of the contractual fees and (2) to interruptions due to maintenance, service disruption or failure external to OCITO.
These temporary interruptions will under no circumstances give rise to indemnification of any kind to the Client’s benefit.
For maintenance operations, OCITO will endeavour to inform the Client in advance by email to the Contact Email Address or via the website.
Any service not expressly provided for in the Agreement, such as training, support etc., shall be subject to a separate agreement, based on a quotation established according to OCITO’s then applicable rates.
Where OCITO collects the Client or the Users’ personal data during the execution and performance of the Agreement, it undertakes to treat such data as confidential, in accordance with French act No. 78-17 dated 6 January 1978.
Individuals may, in accordance with Article 40 of this act, exercise their right to access and rectify their data, by contacting OCITO at the address mentioned at the top of these Terms of Service.
7. Client’s obligations
The Client undertakes :
- to accurately transmit, under his/her/its sole responsibility, all information required for the performance of the Agreement and warrants the accuracy of such information. The Client hence commits to report any change to this information;
- to pay the contractual fees under the conditions set out in the Agreement;
- to acquire the hardware and software, and to subscribe telecommunications services (internet access), required to remotely use the Service. The costs to acquire such equipment and to subscribe to the Internet access services are exclusively borne by the Client;
- to respect OCITO’s intellectual property rights;
- to refrain from using the Service in conditions that may impair the functioning or safety of the Platform and the Service;
- to ensure that all Users are trained to use the Service and Internet-based technologies;
- to refrain from transferring or storing on the Platform, and from using or distributing in the country(ies) where the Client uses the Service and Client Application, data that may:
- impair the functioning of the Platform and/or the Service; and/or
- contain or be likely to contain viruses; and/or
- be of an illegal nature, contrary to the laws or regulations in force, contrary to morality (pornography, violent images, public endorsement of war crimes or Nazism etc.) or infringing third parties’ rights, including (without limitation) intellectual property rights and the right to privacy.
Accordingly, the Client is responsible for any damages such data, Users or himself/herself/itself could cause to OCITO, to a third party, to the Platform or to the Service and will hold OCITO harmless against any claims that may be brought against OCITO by a third party because of such data and, more generally, the Client’s and the Users’ use of the Service and the Client Application.
8. Intellectual Property Rights
OCITO warrants that it owns the intellectual property rights to the Kiwapp Solution and to the Documentation, as well as the structure of the Data Base and all elements used to provide the Service.
The Client undertakes to refrain from any act or behaviour that may directly or indirectly affect the intellectual property rights to the Kiwapp Solution, its Documentation and Data Base, as well as the related trade marks and logos.
The Client shall remain the owner of all personal data and information integrated into the Data Base under this Agreement.
9. Financial conditions
a. Cost and duration of the offers
Subscribing to the “Free” offer is free of charge.
There is a charge to subscribe to the "Pro" offer, by monthly or annual subscription. The selected subscription period appears on the Order Form.
• Financial conditions
With respect to monthly subscriptions, should the Client amend the « Pro » offer he/she/it subscribed to, the new price will apply as of the next invoicing period.
With respect to annual subscriptions, should the Client amend the « Pro » offer he/she/it subscribed and should the new applicable price be higher than the then applicable price, an invoice corresponding to the difference between the then applicable price and the new price will be issued.
In the event of a modification of the Subscribed Offer from a « Free » to a « Pro » offer, the contractual fee applicable to the new offer will be payable immediately.
No amendment of the Client’s Subscribed Offer or change from the “Pro” to the “Free” offer shall qualify for a refund.
b. Payment of the contractual fees
Orders placed on the website Kiwapp.com shall be paid in advance, by debit or credit card.
With respect to offline payments (in case of offline suscription or renewal of the Agreement), the contractual fees shall be paid in full by by bank transfer or Post office transfer, within a month from the receipt by the Client of the invoice issued by OCITO, to the bank account which details appear on the invoice.
c. Penalties for failure to pay
Failure to pay an invoice by its maturity date shall bring about the immediate payment of the entire debt as well as a penalty for late payment equal to the applicable French statutory rate of interest multiplied by three (3).
d. Client’s failure to use the Service
The lack of use or the temporary discontinuance of the Service during the subscription period shall not have the effect of extending the duration of the Agreement or the Service, nor qualify for a refund or any compensation whatsoever.
With respect to online subscriptions, invoices are sent by email after confirmation of payment by OCITO.
With respect to offline subscriptions, invoices will be sent by email and will specify how and when payment shall be made.
a. Termination of the Subscribed Offer and/or of the Agreement by the Client
At any time, the Client may terminate all or part of the Subscribed Offer, subject to sending a registered letter with acknowledgment of receipt, with a notice period of three (3) months. Termination of the entire Subscribed Offer entails the termination of the Agreement.
No amount received in advance by OCITO for the subscription will be refunded.
b. Suspension of the Service and termination of the Agreement by OCITO
At its sole discretion, in the event of breach by the Client or the User to any of their contractual obligations, OCITO shall be fully entitled to suspend the Client’s access to the Service with immediate effect and without prior notice.
Should the Client fail to remedy said breach within eight (8) days from the suspension of his/her/its access to the Service, OCITO shall be fully entitled to terminate the Agreement by registered letter with acknowledgment of receipt, without prior notice.
No amount received in advance by OCITO for the subscription will be refunded and the Client shall not be entitled to any compensation whatsoever.
Notwithstanding the foregoing, OCITO may, if the Client subscribed a "Free" offer, terminate the Service and this Agreement at any time and at its sole discretion, without breach by the Client, subject to notifying the Client of such termination by email to the Contact Email Address one (1) month prior to the termination of the Service and termination of the Agreement. The Client acknowledges that this notice period is sufficient and that he shall not be entitled to claim any compensation of any kind on account of suspension of the Service or termination of the Agreement by OCITO.
Suspension of the Service and/or termination of this Agreement shall not prevent or otherwise impede the claim(s) OCITO may present as a result of the Client’s breach(es).
c. Consequences of the termination
From the termination date, the Client and the User will no longer be able to use the Service.
The Client shall be solely responsible for the consequences of the termination of the Agreement, in particular in terms of continuity of its internal management and commercial activities.
For a period of two months from the termination of the Agreement, OCITO will retain the Client’s data and the data relating to the Client’s account. The Client shall be entitled to recover this data by downloading it.
After this time period, the Client's data and the data relating to the Client’s account will be deleted without the Client being entitled to any compensation.
As the Client could, prior to entering the Agreement, study the fitness of the Service and of the Subscribed Offer to his/her/its needs, OCITO gives no guarantee whatsoever of fitness of the Service and the Subscribed Offer to the Client’s specific needs. OCITO only warrants that the Service complies with the Documentation.
The Parties agree that, given the uncertainties inherent to computer technology and the Internet network, OCITO is subject to a “best efforts” obligation. It is expressly agreed that OCITO’s liability may only be sought in cases of gross negligence or willful misconduct.
OCITO does not guarantee that the Service will be uninterrupted, or that it will be free of defects or errors, or that it will be possible to correct such defects or errors.
The Client is solely responsible for the development and use of the Client Application. Therefore, OCITO shall not be liable as a result of the development and use of the Client Application and of its data by the Client.
The Parties expressly agree that OCITO shall not be liable for damages such as – amongst others – financial loss, commercial loss, loss of customers, any business disruption, loss of profit, damage to his/her/its image, loss of data, files or software suffered by the Client, which could result from the breach or termination of the Agreement.
Actions brought against the Client by a third party shall be considered as indirect damages. Therefore, they shall not qualify for compensation.
In any event, the maximum aggregate liability of OCITO to the Client related to or in connection with this Agreement will be limited to the amount actually received by OCITO in respect of performance of the Agreement during the calendar quarter in which liability is asserted.
It is expressly agreed that this article shall survive the termination or rescission of this Agreement for any reason whatsoever.
12. Relationships with Apple and Google
OCITO shall not be liable for any loss of functionality or performance of the Service and / or the Client Application suffered by the Client arising out of:
- a software update of Apple’s products and of the products using Google’s Android operating system;
- a termination of the "Developer Program" contracts entered in by OCITO with Apple and Google, whatever the cause.
During the term of the Agreement and for a period of two (2) years after its termination, each Party undertakes to treat as confidential all information (including - without this list being exhaustive - documents, software, know-how, data) provided by the other Party for the performance of the Agreement.
The Parties shall ensure that their employees, subcontractors and suppliers of any service comport with this obligation and shall be liable for any breach of confidentiality they would commit.
a. Transfer of the Agreement and subcontracting
For the purpose of carrying out its obligations, OCITO reserves the right to assign, subcontract, transfer and / or provide all or part of the rights and obligations subject of Agreement to a third party in any form whatsoever.
b. General clauses
This Agreement constitutes the entire Agreement between the Parties with respect to the subject matter hereof. It supersedes all prior negotiations, contracts, and undertakings between the Parties with respect to such matter.
The provisions of this Agreement may only be amended by a written agreement signed by both Parties.
Notwithstanding the foregoing, OCITO reserves the right to amend the offers, the prices of these offers and / or these Terms of Service, in particular in case of technical or legal changes. All amendments will be emailed to the Client, who accepts this means of communication, to the Contact Email Address, one (1) month before their entry into force.
The fact that one of the Parties did not request the application of any provision of this Agreement shall in no event be deemed or interpreted as a waiver of the right that Party has under this provision.
15. Language, applicable law and jurisdiction
This Agreement is written in English and in French. In case of discrepancy between the two versions, the French version shall prevail.
The Agreement shall be governed by the laws of France.
ANY DISPUTE, CONTROVERSY OR CLAIM ARISING UNDER, OUT OF OR RELATING TO THE VALIDITY, INTERPRETATION AND PERFORMANCE OF THE AGREEMENT SHALL BE REFERRED TO AND FINALLY DETERMINED BY THE COMPETENT COURTS OF NANTERRE (FRANCE).