GENERAL TERMS AND CONDITIONS OF SALE AND SERVICES FOR SKIPLY APPLICATIONS
Updated on February 14, 2020
PREAMBLE
Skiply markets solutions for measuring and improving customer satisfaction and operational performance, in particular connected boxes for professionals, intended to be installed in sales areas, offices or any place open to the public (“the Products”). Skiply also offers alert, access and visualization services for the data collected by these boxes, via API and/or web services (“the Services”).
A. General Provisions
1. Purpose
The purpose of these General Terms and Conditions is to define the terms and conditions of supply of the Products and Services by Skiply to the Customer.
2. Definitions
In these General Terms and Conditions, each of the expressions mentioned below shall have the meaning given in its definition, i.e.:
• Anomaly: a malfunction that, individually or cumulatively, makes normal use of all or part of the Service’s functionalities impossible.
• Customer: the natural or legal person, under public or private law, who has entered into a Contract with Skiply,
• Order: the Quotation accepted by the Customer; or the Order Form containing the elements of the Quotation, and accepted by Skiply;
• Contract: the contract shall consist of the contractual documents set out in Article 5.
• Quotation: Skiply’s commercial proposal describing the Products and Services provided as well as their price, which may also be referred to as an “order form”
• Data: data of any kind, and in particular of a personal nature, belonging to the Customer, and processed by the Service, as well as data generated by the Service in the context of its use by the Customer;
• Products: connected boxes for professionals, intended to be installed in sales areas, offices or any place open to the public;
• Service(s): application services for connectivity, alerts, access and visualization of Data collected by the Products;
• SKIPLY: the simplified joint stock company Skiply, registered with the Chambéry Trade and Companies Register under number 810 794 966, whose registered office is located 53 avenue de Saint Simond – 73100 Aix-Les-Bains,
• Solution: Hardware and software solution, consisting of the Products and Services, and enabling the fulfilment of the functionality(ies) provided for in the Order;
• User: physical person using Skiply terminals deployed in private or public places and clicking buttons
• Customer User: natural person, under the authority of the Customer, authorised to use the Services;
3. Formation of the Contract
All Orders are subject to a prior Quotation. Only the prices and indications appearing on this commercial proposal have contractual value, excluding the prices and information appearing in the catalogues, prospectuses and the Skiply website, which are given for information purposes only.
The Contract is deemed to be formed as soon as Skiply is aware of the acceptance of the Quotation by the Customer, by the return of the Quotation with the mention “valid for agreement”, by mail addressed to the head office of SKIPLY, or by email. In case of acceptance by email, the Contract will be formed only from the date of sending of the acknowledgement of receipt or reading of the Customer’s email by SKIPLY.
Unless otherwise stipulated in the Quotation, the Contract comes into force on the day it is formed.
Once the Contract is formed, it cannot be cancelled. However, in the event of unilateral cancellation of the Contract by the Customer, whatever the cause, the Customer shall be liable to pay compensation equal to 50% of the price of the Order, which the Customer shall pay within a maximum period of 30 days upon presentation of the invoice.
4. Acceptance and modification of the General Terms and Conditions
These General Conditions are systematically mentioned on the Quotation, and can be consulted on the Company’s websites (www.skiply.fr / www.skiply.eu). In the absence of a special written stipulation on the Quotation that derogates in whole or in part from these General Terms and Conditions, any acceptance by the Customer of a Quotation from Skiply, including in the form of an Order Form referring to the Quotation, shall be deemed to be full and complete acceptance by the Customer of these General Terms and Conditions to the exclusion of any other documents issued by the Customer.
The applicable GTCs are those in force on the date of acceptance of the Quotation by the Customer (“the Order”), namely those published on Skiply’s sites on the date of the Order. Skiply reserves the right to modify these Terms and Conditions at any time. The changes made will be applicable to current contracts, after 30 days from the date on which these changes are sent by email to the Customer. If it refuses these modifications, the Customer may terminate the Agreement by sending a registered letter with acknowledgement of receipt to Skiply during the notice period. In this case, the provisions of the article “Termination of the Contract” shall apply.
5. Term of the Contract – Renewal
For sales of Products, the Contract shall terminate upon expiry of the warranty period provided for in the “Warranty” section of these General Terms and Conditions.
For Services, the Contract is entered into for the period specified in the Quotation (“Initial Period”). At the end of the Initial Period, the Contract shall be renewed by tacit agreement for successive periods of twelve (12) months, unless terminated by registered letter with acknowledgement of receipt by one of the parties no later than one (1) month before the end of the initial or renewal period.
6. Customer Information
The Customer declares that it has or had the opportunity to have a presentation of the Services made by Skiply, or by one of its partners (distributors or resellers) and it therefore declares that it is fully aware of the nature and scope of the functionalities offered by the Solution.
The Customer acknowledges having received all the information and advice enabling it to become aware of the potential, the purpose and the functionalities of the Solution, and to check the suitability of the Solution to its needs, in order to be able to make an informed decision on the Quotation that has been sent to it.
If the Customer is not the end user of the Solution, it shall be the Customer’s responsibility to inform the end user of all the functionalities and purpose of the Solution and to verify the suitability of the Solution to the end customer’s needs. Skiply shall not be bound by any duty to provide advice or information towards the Customer’s own customers or prospects.
As Skiply is not an integrator or expert in networks, it is up to the Customer to add all the necessary skills to verify the full compatibility of the Solution with the security requirements and the performances of its Information System.
7. Prices
The prices are those in force on the day of the Order. They are denominated in Euros and exclusive of tax and will be increased by the VAT rate and transport costs applicable on the day of the Order.
In the event of an export sale, the Customer remains liable for customs clearance formalities and the payment of related duties and taxes.
In the event of renewal of the Contract, the price of the Services or the total price may be revised according to the variation of the Syntec index according to the formula:
Pn = Pn-1 (Sn/Sn-1)
With Pn= price for the new year
Pn-1 = previously applicable price
Sn = last Syntec index published on the date of January 1 under consideration
Sn-1 = Syntec index used to fix Pn-1
8. Terms of payment
Skiply will require a thirty (30) % deposit for all orders over Three Thousand Five Hundred Euros (3500) Euros excluding VAT.
The payment of the down payment triggers the processing of the Order.
For all other invoices, the payment deadline is thirty (30) days from the date of invoice, by bank transfer or cheque. In the event of late payment of an amount due by the Customer, any sum due shall become immediately payable by operation of law, in accordance with Article L 441-6 of the French Commercial Code, on the day following the payment date appearing on the invoice. If, despite reminders from Skiply, the Customer’s payment does not reach Skiply within eight (8) days following the formal notice, Skiply will have recourse to the competent courts and will take legal action to assert its rights.
Amounts paid more than one month late in relation to the contractual due date will systematically bear interest at an annual rate of 12%. Furthermore, in accordance with Articles L.441-3 and L.441-6 of the French Commercial Code, this late payment shall automatically entail, in addition to the late payment penalties, the obligation for the Customer to pay a minimum fixed indemnity of forty (40) Euros for collection costs, it being understood that Skiply reserves the right to claim an additional indemnity, upon proof, if the collection costs are higher than the amount of the fixed indemnity.
9. Termination
In the event of failure by one of the parties to meet its obligations and if this party fails to remedy the breach within one (1) month after formal notice by registered letter with acknowledgement of receipt notifying the existence of the breach, the other party may terminate the contract by right by registered letter with acknowledgement of receipt.
Furthermore, in the event of early termination for non-payment by the Customer, Skiply reserves the right to apply a penalty to the Customer set at 10% of the price excluding VAT of the amount of the sums remaining to be paid, without prejudice to the damages and interest that SKIPLY may claim in addition to the amount of the loss suffered.
Reactivation of services following a suspension due to the Client’s failure to make payment will result in a service reinstatement fee. These fees will amount to 10% of the annual cost of the services involved.
10. Consequences of the termination of the Contract
In the event of termination of the Contract, for any reason whatsoever, the Customer shall :
• immediately stop using the Solution,
• pay within 30 days all outstanding amounts due to Skiply.
Royalties paid for the current contractual period will remain with Skiply, with no refund possible.
In the event of termination of the contractual relationship, for any reason whatsoever, the Customer may recover all of its Data in the Solution, via the APIs, within a maximum period of 15 days from the termination of the Contract. In addition, Skiply undertakes to destroy, at the express written request of the Customer, all of the Data hosted by the Solution.
In order for the Customer to continue to use the Data, without interruption, directly or with the assistance of another service provider, Skiply will provide assistance services at the Customer’s request in the context of reversibility, with the aim of providing the Customer with the Data in the format of its choice. These services will be carried out on the basis of a prior estimate and will be invoiced separately.
B. Provisions specific to the Products
1. Delivery
1.1 Terms and conditions of delivery
If the place of delivery of the Products is located in Metropolitan France, the delivery takes place upon arrival at the Customer’s premises. The transfer of risk shall take place upon delivery.
If the place of delivery of the Products is located outside Metropolitan France, the Products are delivered FCA (Incoterms- 2010). The transfer of risks on the Products takes place when the Products are handed over to the carrier designated by the Customer.
1.1 Delivery Time
Unless otherwise indicated in the Quotation, the shipping times run from the receipt by Skiply of the payment of the deposit, if applicable, and the validation by the Customer of the technical choices or design of the Products, in the case of custom-made products. The delivery times expressed by Skiply are given for information only. A delay in delivery does not entitle the Customer to cancel the order or refuse the Products and cannot give rise to any compensation.
1.2 Acceptance of Products
Upon receipt of the Products, the Customer must check that they conform to the Order and that the packaging is in good condition. In the event of non-conformity, missing Products or apparent defects, he must immediately inform Skiply and the carrier by email or fax, imperatively accompanied by a registered letter with acknowledgement of receipt, at the latest within three (3) working days following delivery, in accordance with Article L.133-3 of the French Commercial Code. The Customer shall provide Skiply with all the elements attesting to an apparent defect or non-conformity of the Products delivered. After Skiply has ascertained a defect or non-conformity, the Customer may obtain free replacement or reimbursement of the Products, at Skiply’s discretion, to the exclusion of any compensation.
After the aforementioned period of three (3) days and if it fails to comply with these formalities, the Customer shall be deemed to have accepted the Products without reservation, and delivery shall be deemed to have been made.
2. Product Installation
The Solution shall be installed and configured by Skiply, or one of its partners, at the Customer’s expense as indicated in the Order. The Solution can also be installed and configured by the Customer itself, provided that Skiply provides adequate training at its own expense.
In the event that the Products are installed on site by Skiply or by a third party approved by Skiply, the Customer undertakes to make available to Skiply or its subcontractor, at the agreed dates and times, the places where the Products will be installed. Skiply will send to the Customer all the prerequisites necessary for proper installation of the Products. If the Customer fails to comply with these requirements, or if the installation site is unavailable at the agreed time, Skiply will invoice the Customer for the additional time spent at the hourly rate of ninety (90) EUR excluding VAT, as well as any additional costs incurred, on presentation of supporting documents.
At the end of the installation, the Customer must record any reservations on the Acceptance Report. If the Customer is absent during the installation, the acceptance report will be considered to be free of any reservations on the departure of Skiply personnel. Skiply shall in no case be held responsible for a malfunction related to incorrect installation by an unauthorised third party or by the Customer itself.
3. Warranty
3.1 Duration and Scope of the Warranty
Skiply products are guaranteed for one year from the date of delivery as indicated in the article “Delivery”. This warranty is applicable only in the event of “normal and customary” use of the equipment. During the warranty period, Skiply will, at its option, replace or repair defective equipment. The Customer undertakes to inform SKIPLY by telephone or email of any malfunction of the Product during the warranty period in order to obtain a return authorisation number. The costs and risks associated with the return of Products under warranty will be borne by Skiply. The total warranty period will not be extended if the Product is repaired.
Beyond the warranty period, the Customer may take out a maintenance contract.
3.2 Exclusions
The warranty is excluded if the defects or malfunctions are due to incorrect installation, inadequate maintenance, modification not authorised by Skiply, abnormal use or use not in accordance with the operating instructions, accident, knock, fall or lack of supervision. Normal wear and tear of the batteries and their possible replacement is not included in the warranty.
The transport or movement of the Products by the Customer outside the installation site is not part of normal use. The Solution is non-transportable. Any breakdown or damage caused during transport by the Customer cannot be covered under this warranty.
Any correction of a malfunction or any replacement of the product originating from one of the cases listed above will be invoiced to the Customer according to Skiply’s rates in force on the day of its intervention.
Any repairs or parts changed during the warranty period are themselves guaranteed until the expiry of the initial warranty period.
The provisions of this article represent the entire warranty of the Products.
4. Recycling
The components of the Products are compatible with the applicable waste management regulations. It is the Customer’s responsibility to dispose of used or end-of-life Products in establishments authorised to recycle products containing electronic circuits.
5. Retention of title
In accordance with article L 624-16 of the French Commercial Code, the Products delivered remain the property of Skiply until full payment of the price by the Customer. In the event of non-payment of the full price remaining due by the customer, and after the expiry of a period of 8 days following the sending by Skiply of formal notice that remains unheeded, the contract shall be automatically terminated and Skiply shall be entitled to claim ownership of the goods sold, under the conditions provided for in Articles l.624-9 et seq. of the French Commercial Code.
Any deposit paid by the Customer shall be forfeited to Skiply by way of lump-sum compensation, without prejudice to any other action that it may be entitled to take against Skiply as a result.
The Customer therefore undertakes to insure, at its own expense, the products ordered, to the benefit of SKIPLY, by an ad hoc insurance, until the complete transfer of ownership.
C. Specific Conditions for Services
1. Access to Services
In order to access the Services, the Customer will be given a strictly confidential identifier and access code. The Customer will be responsible for the management of this password and identifier by the Customer Users. In general, the Customer is responsible for the security of the individual workstations accessing the Services. It undertakes to allow access to the Services only to authorised members of its staff.
The Services require access by the Customer to a low-energy telecommunications network, which is, unless otherwise stipulated in the Quotation, provided with the Services.
Unless otherwise specified in the Order, the Services are provided without limit on the number of Customer Users, it being specified that this provision is limited to remote access, without any installation whatsoever on the Customer’s computer system or the Customer User’s computer.
2. Availability of Services
2.1 Availability Commitment
Skiply will endeavour to maintain access to the Services on a twenty-four (24) hour, seven (7) day per week (24×7) basis.
Skiply undertakes to take all necessary care and diligence to ensure the permanence, continuity and quality of Service in accordance with the practices of the profession and the state of the art, and is therefore bound by an obligation of means.
Consequently, Skiply will implement the necessary means to achieve Service availability 99% of the time. This availability is measured over one year, exclusively on Working Hours.
2.2 Exclusions
Skiply shall not be liable for any failure to meet its obligations regarding the quality and continuity of the Service, as set forth in this Article, in the event of:
• disruption or interruption on the telecom or Internet operator network infrastructures, and in particular the low-speed communication networks used by the Service such as the LoRa or Sigfox networks,
• Pre-notified maintenance periods providing for preventive maintenance of the server infrastructure in order to maintain the quality level of the Service,
• interruption of the Service ordered by an administrative or judicial authority,
• defects related to Products not covered by the Warranty provided for in the General Conditions or by a maintenance contract,
• lack of collaboration of the Customer in the analysis and diagnosis of Service Anomalies;
It is recalled that Skiply reserves the right to suspend access to the Service for possible maintenance or improvement interventions in order to ensure the proper functioning of said Services. Skiply will then inform the Customer within 24 working hours in advance, indicating the nature and duration of the intervention.
These interventions will take place either on weekends or during the week between 9pm and 6am.
In the event of a change in the legal framework for the use of the radio technologies used by the Product, Skiply will search with the Customer for the best solution to allow the continuity of the service.
In addition, it is recalled that Skiply has no control over the evolution of the third party programs with which the Services are connected (via APIs), and that the modification or evolution of these third party programs may affect certain functionalities of the Services. Skiply shall not be held liable for the unavailability of certain features of the Services, due to the evolution of these third party programs.
It is the Customer’s responsibility to ensure that the authorities in the country where the equipment will be installed authorise the use of the ISM frequency bands used by Skiply equipment.
Skiply shall not be held liable for the unavailability of the Service due to a lack of authorisation or a restriction of the frequency bands in the Customer’s country. However, in the event of an interruption of the Service attributable to Skiply, and greater than 1 working day, the contractual subscription period will be automatically extended to compensate for the duration of the interruption.
2.3 Penalties
If the maximum period of unavailability is exceeded, Skiply shall owe the Customer a penalty calculated on the basis of the annual fee, in proportion to the time of unavailability of the Service, calculated as follows:
P = N x (1 xR/100), where
• P= penalty
• N= number of days of unavailability (any duration less than 24 hours is considered as one day)
• R= amount of the annual fee
This penalty will be charged on the Customer’s next invoice.
It is capped at 10% of the annual Service fee, and is in full discharge, so that the Customer shall refrain from any other recourse or claim due to the unavailability suffered.
3. Data
3.1 Data Ownership
Unless otherwise stated in the Quotation, Skiply hosts the Customer Data collected by the Products. This Data does not contain any personal information about Users.
All Data and information related to the operation of the Service by the Customer remains the exclusive property of the Customer. Skiply shall not communicate its content to any third party, except on the order of an administrative or judicial authority.
The Customer may access its Data at any time via its web interface and may also request a full copy at the end of the contract. The Customer authorises Skiply to use the data collected for statistical purposes, in particular for sectorial purposes, in a consolidated and anonymous form, without mentioning the name of the Customer or the site concerned.
3.2 Data security
Skiply ensures optimal conditions of Data hosting, either on its servers or on those of its subcontractors. Skiply undertakes to implement the technical means to ensure the security of the Customer’s Data and in particular to protect it against any accidental or illicit destruction, accidental loss, alteration, unauthorised distribution or access, as well as against any other form of illicit processing, or communication to unauthorised persons.
However, Skiply shall not be liable for any loss of data resulting from a modification of the third party program, or misuse of the program by the Customer.
D. Final Provisions
1. Confidentiality
The Parties undertake not to disclose any confidential information of the other Party that they may have had to know in the course of performing the Contract. Thus, the Parties undertake to strictly respect this confidentiality and not to communicate to anyone any non-public information of which they may be aware, both during the term of the contract and after its expiry. In particular, the Customer shall refrain from communicating to any third party whatsoever all or part of the information collected on Skiply’s software solutions and Skiply shall refrain from disclosing the Customer’s confidential information and from using it for any purpose other than what is strictly necessary for the performance of the services provided to the Customer. In particular the terms and conditions of the relationship between Skiply and the Customer are confidential.
Information which is publicly available at the time of disclosure or which subsequently becomes available without breach of confidentiality by one of the Parties, or which has been legitimately obtained from a third party without breach of a confidentiality agreement concerning that information, shall not be considered confidential.
2. Liability
Skiply shall not be held liable for any indirect damage that the Customer may suffer such as, in particular: commercial prejudice, loss of orders, commercial disruption of any kind, loss of profits, damage to the brand image that may result from the use of the Application Services, the inability to use the Services, the use of the results obtained through the use of the Services or a breach by Skiply of its contractual obligations. Any action brought against the Customer by a third party constitutes indirect prejudice. Consequently, Skiply shall not be held liable for any breach of the obligations of its sales intermediaries (integrators, distributors).
In the event that Skiply’s liability is recognised, by a final court decision or in the context of an amicable agreement between the Parties, the damages for which Skiply is liable shall, by mutual agreement, be expressly limited to the amount excluding VAT actually paid by the Customer to Skiply during the twelve (12) months preceding the date of the amicable claim or, failing this, the date of the Customer’s legal claim. If this limitation of liability is found to be invalid or unwritten, then Skiply’s liability shall not exceed the amount covered under its professional liability insurance policy. Skiply holds an insurance policy covering its professional civil liability for a minimum amount of 9 (nine) million Euros for bodily injury and 1,200,000 (one million two hundred thousand) Euros for material and consequential damages combined. Skiply undertakes to maintain these guarantees for the entire duration of this Contract and to provide proof thereof at the Customer’s request.
3. Intellectual Property Rights
Skiply is and remains the owner of the copyright on the Services and Products (in particular its design, as well as that of the buttons). The sale of the Box and the right to use the Services granted by Skiply does not entail any transfer of intellectual property or know-how to the benefit of the Customer. Consequently, the Customer undertakes not to infringe directly or through third parties with whom it would be associated with Skiply’s intellectual property rights. Unless otherwise stated in the Quotation, the designs made by Skiply on behalf of the Customer remain the property of Skiply, which grants an exclusive licence to use them for the duration of the Contract.
Furthermore, when the Customer designs one of the elements of the Product, the Customer guarantees Skiply against any recourse by a third party alleging a violation of its prior rights, and undertakes to indemnify Skiply for any sentence that may be pronounced against it in its capacity as manufacturer of the Product reproducing the infringing design.
4. Commercial references
By accepting these General Terms and Conditions, the Customer expressly authorises Skiply to reference it as a customer, and to reproduce its logo or trademark on its website and commercial documents. Likewise, the Customer may claim to be a customer of Skiply.
5. Non solicitation of personnel
The Customer shall refrain, for the entire duration of the Contract and for a period of one (1) year from the termination of the Contract, for any reason whatsoever, from soliciting, hiring, or having work, directly or indirectly, under any status whatsoever, any employee or former employee of Skiply during the period of performance of the Contract, whether or not he has participated in the performance of the Contract.
In the event of a breach of this clause, the Customer shall pay Skiply an indemnity equal to one year’s gross salary (including employer’s contributions) of the employee concerned.
6. Assignment of the Contract
The benefit of the Contract may not be assigned or transferred by the Customer to a third party without the prior written consent of Skiply. On the other hand, Skiply shall have the right to transfer its rights and obligations under the Contract at any time, subject to informing the Customer. By express derogation from Article 1216-1 of the French Civil Code, Skiply shall in this case no longer be bound by any obligation, past or future, related to the performance of the Contract; the rights and obligations of Skiply being fully assumed by the assignee.
7. Subcontracting
Skiply shall be entitled to subcontract all or part of the Contract to any third party of its choice. However, it shall remain solely liable to the Customer for all its obligations arising from the Contract.
8. Non waiver
In the event that either party fails to enforce or claim enforcement by the other party of any of the provisions hereof, such failure shall not be construed as a waiver of such enforcement, nor shall it prejudice the respective rights of the parties.
9. Severability
Any event affecting, for any reason whatsoever, the existence of a contractual stipulation, in particular suppression, impossibility of execution or invalidation by court decision, separable from the other provisions of the present terms and conditions, does not affect the mandatory nature of the execution by the parties of the other stipulations of these terms and conditions.
10. Force majeure
The performance of the obligations incumbent on each of the parties hereunder shall be suspended by the occurrence of an event constituting force majeure within the meaning of the new Article 1218 of the French Civil Code, and the case law of the French courts, including, by express agreement of the Parties, the following events: a stoppage in the supply of energy (such as electricity), civil or foreign war, riots or popular movements, attacks, a failure of the Internet or other public or private telecom network necessary for the provision of the Services, death of a key person at Skiply, such as one of its corporate officers or its technical director. In order to benefit from the stipulations of this article, the party wishing to invoke a case of force majeure must, under penalty of foreclosure, notify the other party by registered letter with acknowledgement of receipt as soon as it becomes aware of the occurrence of such an event and at the latest within eight (8) calendar days from the occurrence of said event. Throughout its duration, the event of force majeure suspends the performance of the obligations for the party availing itself of it. In all cases, the party affected by the event of force majeure shall do everything in its power to avoid, eliminate or reduce the causes of the delay and resume performance of its obligations as soon as the event invoked has ceased. If the case of force majeure should exceed sixty (60) days from the notification referred to above, the affected party shall be entitled to terminate the Contract automatically and without compensation, without any formality other than sending the other party a registered letter with acknowledgement of receipt.
11. Applicable Law and Dispute Resolution
These General Conditions are subject to French law.
IN THE EVENT OF A DISPUTE CONCERNING THE VALIDITY, INTERPRETATION, PERFORMANCE OR TERMINATION OF A CONTRACT SUBJECT TO THESE GENERAL CONDITIONS, AND IN THE ABSENCE OF AN AMICABLE AGREEMENT BETWEEN THE PARTIES WITHIN ONE MONTH OF NOTIFICATION OF THE DISPUTE, THE DISPUTE SHALL BE SUBMITTED TO THE EXCLUSIVE JURISDICTION OF THE COMMERCIAL COURT OF CHAMBÉRY, NOTWITHSTANDING MULTIPLE DEFENDANTS OR THE INTRODUCTION OF THIRD PARTIES, EVEN FOR EMERGENCY PROCEEDINGS OR CONSERVATORY MEASURES, IN SUMMARY PROCEEDINGS OR ON APPLICATION.
