Applicable since March 6, 2020
The Parties agree to recognize that the ToU prevails over any buying general conditions or any other documents.
The catalogs, flyers, advertisements, notices, just have an informative and indicative value, non-contractual.
BYSTAMP reserves the right to derogate certain clauses of these, according to the negotiations conducted with the Client, by the establishment of Specific Conditions established at the time of the order.
Computer interface within the Solution BYSTAMP Solution, put at Client disposition to access Contract related information, Data, electronic stamps and Services that concern them. It is accessible by the Client by using its identifiers.
Set of items concerning the electronic stamp and its use by the Client or by the Final holder on Service(s):
– Final holder contact information
– Service installation ID
– Daily number of uses of each Electronic stamp about each Service edited by the Client
Data is preserved on the BYSTAMP Solution database and put at Client disposition via Back office and Web Services
Only BYSTAMP can intervene on the Final holder contact information (KYC).
Codes comprising a login and password necessaries for Client to access into Back office within BYSTAMP Solution and Data concerning their electronic stamps and their Services.
The username is unique, personal and confidential. All use of the username is considered as done by the Client. It is therefore up to the Client to ensure its utmost confidentiality.
Physical or legal person that use the electronic stamp daily through one or more Services. Final holder is named « Proprietary » on the BYSTAMP interfaces (Back Office and Front Office) and possesses a SIRET number or intercommunal VAT.
Final holder shall have access to some of the data linked to the use of his electronic stamp via a private Front Office.
Physical person that uses the Electronic stamp daily for tamponing smartphones, tablets and other terminals. This person is legally linked to the Final holder (work contract, service contract).
Mobile application, published on at least one Store, develop by the Client for himself or for one of its customer, or develop by another editor, who uses the BYSTAMP Solution development kit to make it compatible with the use of electronic stamps.
Software suite that allows registering Data within a database of which BYSTAMP is the author and producer. The Solution BYSTAMP provides access to a Back office for the Client.
It provide also a Software Development Kit (SDK) for integration into its Service to make it compatible with the use of Electronic stamps, as well as a mobile application called BYSTAMP.
Electronic stamp, sensor data, designed, manufactured and sold by BYSTAMP to the Client or to the Final holder.
Electronic stamp allows materializing the validation or the consent of the Client or of the Final holder.
Electronic stamp functioning needs the download of Service. Electronic stamp cannot be used for other uses that those provide for by Service.
On the rest of the document, these terms could be used in singular or plural, with the same meaning.
ARTICLE 1 – Contract object
The Contract has for object to define the conditions in which BYSTAMP puts to Client disposition the BYSTAMP Solution.
ARTICLE 2 – License to use of the BYSTAMP Solution
2.1 – The Client benefits from a personal right to use, non-exclusive and non-transferable of the BYSTAMP Solution allowing processing the Data arisen from the use of the Client Services. The right to use is limited to the duration of the license to use (article 3) and it is made in SaaS mode.
The current license does not confer to the Client any other intellectual property right over the BYSTAMP Solution and over the evolutions that remains of entire and exclusive property of BYSTAMP.
It is notably strictly forbidden to the Client:
– To proceed to any form of reproduction or representation of the BYSTAMP Solution or its documentation, or alter or conceal in any way the brands, distinctive marks, copyright mentions affixed on the BYSTAMP Solution;
– To disseminate or to market the BYSTAMP solution, against payment or free of charge;
– To intervene on the BYSTAMP Solution in any way and for any reason, including for error correction, the corrective maintenance shall be assured by BYSTAMP;
– To modify or to attempt to circumvent any protection device of the BYSTAMP Solution.
2.2 – The current license being non-transferable, it is strictly forbidden to proceed to a sublicense of the BYSTAMP Solution, regardless of the sublicensed targeted including a subsidiary and regardless of the sublicense conditions, without prior and written authorization of BYSTAMP.
2.3 – The non-compliance provisions of the current article could lead to the immediate termination of the license to use, to the exclusive prejudices of the Client, without prejudices to the damages and interests about which could claim BYSTAMP. The Client would be thus qualifying as a counterfeiter.
ARTICLE 3 – License of use duration of the BYSTAMP Solution
The license of use of the BYSTAMP Solution shall take effect from the date of the signature of Specific Conditions by the Client.
It is concluded after a specific period of 12 months counted from the effective date. It renews for a tacit extension for identical durations, except by sending an interruption letter by one or the other Party, 3 months before the anniversary date.
ARTICLE 4 – Configuration of the BYSTAMP Solution – Creation of the first usernames
4.1 – The signature of the Specific Conditions by the Client cause from one part the creation of the Back office within the BYSTAMP Solution by BYSTAMP, and from the other the creation and communication of usernames to the Client.
4.2 – The first registration of a validation with the help of an Electronic stamp of the Client is worth the functioning conformity of the BYSTAMP Solution, from Client.
ARTICLE 5 – Data Availability – Data Hosting
5.1 – With the exception of the limited and provisional rights agreed on the framework of the contract, BYSTAMP reserves all rights, titles and interest over the Data, including all intellectual property rights related to it.
In case of arriving at the end of the license to use of the BYSTAMP solution or in case of termination of this for whatever reason, the access to the Data shall be immediately interrupt on the day of the entry into force of the term or of the termination.
Without prior and written authorization of BYSTAMP, the Client commits not to:
– Authorize a third-party to access to the Data besides on the conditions expressly approved by BYSTAMP
– Create derivative works based on the Data
– Make a copy, reconstruct the frame or proceed to mirroring of all parts of all Data content and/or of the database.
5.2 – BYSTAMP ensure Data hosting related to the use of the BYSTAMP Solution, on your servers.
BYSTAMP implement the best ways known to date to preserve data integrity. BYSTAMP is committed to prevent the server access to non-authorize third-parties in the framework of best practices.
5.3 – One part of the database of the BYSTAMP Solution can be reproduce on the Client’s server as indicated by the Client, in a way in which the data shall be synchronize. Synchronization is periodic but it is not done on real-time.
5.4 – Hyperlinks available on the Back Office
Hyperlinks available on the Back office can resend towards third-party sites non-edited by BYSTAMP. These links are provided only for the user and/or the Final holder convenience, in order to facilitate the use of available resources on the Back office. BYSTAMP is not in any case responsible of the content, security, availability and use of these third-party sites.
5.5 – Hyperlinks towards the Back office
The use of hyperlinks returning to the Back office is forbidden without the prior and written authorization of BYSTAMP. In case of agreement, BYSTAMP reserves the right to revoke this authorization at any moment.
The authorization holder commits to not alter, in any way, the logo or any other distinctive mark of BYSTAMP. This link shall have to be consistent to the whole applicable legal provisions, and do not cause harm to the customers or the reputation of BYSTAMP.
ARTICLE 6 – Availability and evolution of the BYSTAMP Solution
6.1 – BYSTAMP shall provide its best efforts to allow the availability of the BYSTAMP Solution 24h / 24h and 7 days / 7 days except the cases of force majeure as described on the article « Force majeure » below, the events out of control of BYSTAMP, possible failures and necessary interventions for the proper functioning of the Service and the materials.
BYSTAMP commits thus on implementing the best ways to guarantee the availability of the BYSTAMP Solution. However, BYSTAMP shall not know to be held responsible of perturbations, outage/anomalies that are not his doing and that shall affect the transmissions over the Internet network and more broadly, by the communication network, whatever the importance and duration.
6.2 – BYSTAMP reserves the right to shut down the access to the BYSTAMP Solution in order to ensure materials maintenance of the BYSTAMP Solution itself and the necessary software for data processing and at its hosting. As far as possible, BYSTAMP informs the Client in advance of any interruption of access to the server; of its doing or which it could have knowledge. BYSTAMP commits to do its best efforts to proceed at maintenance out of rush hours.
6.3 – BYSTAMP commits to ensure a minimum availability rate of 98.5% excluding periods of technical intervention.
6.4 – Being brought to develop new functionalities to enrich the BYSTAMP Solution, BYSTAMP reserves the possibility of making evolve this in both substance and form, at any time and without prior notice, without the Client opposition, being understood that BYSTAMP commits to guarantee:
- The compliance of expected provisions at the article « Availability of the BYSTAMP Solution »
- The maintenance of the main and/or essential functionalities to the Client such as the ones mentioned by the Client
- The information to the Client about evolutions, thus to provide online and/or phone support to the Client for the evolutions appropriation of the BYSTAMP Solution.
Generally, BYSTAMP shall make an effort of making evolve the BYSTAMP Solution in a way of performance improvement and ergonomic of this. However, the Client cannot criticize BYSTAMP of not making evolve the BYSTAMP Solution despite the evolution requests communication.
ARTICLE 7 – Assistance – Technical support
BYSTAMP shall put at the Client disposal an e-mail and/or phone support on the conditions below and implement the necessary means to receive the Client requests in good terms: availability and competence of personnel in charge of support, of their analysis and solution search and to intervene expeditiously.
Except other provisions described in the Specific Conditions, the days and hours of phone support reception are expected from Monday to Friday with the exception of French holidays, from 9h00 to 12h and from 14h to 17h30, CET time (Central European Time).
ARTICLE 8 – Corrective Maintenance
8.1 – Corrective maintenance has for goal to provide the Client a direct solution or where appropriate, circumvention in the case of noticed malfunctions and not allowing, for the Client, a normal use of a functionality of BYSTAMP Solution.
8.2 – So as to facilitate the maintenance, the Client commits to describe with precision the malfunctioning (situation description that he finds: error messages, menu sequence, etc.). The quality and the delay of the answer of BYSTAMP necessarily depend of the active collaboration of the Client, in charge of transmitting adequate information. BYSTAMP commits to put the necessary means for processing the Client requests in good terms and to intervene expeditiously.
8.3 – Any intervention of BYSTAMP following a malfunction owed to a non-compliant use of the BYSTAMP Solution or the electronic stamp by the Client or consecutive to an anomaly of one of some elements of the information system configuration of the Client could be made the object of a quotation billing.
ARTICLE 9 – Financial conditions
9.1 – Financial conditions are detailed at the time of BYSTAMP account creation and are available in the BYSTAMP Application.
License of use price does not include the Internet access cost that allows the use of the BYSTAMP Solution, which remains in responsibility of the Client.
Unless otherwise specified, all prices are expressed in Euros excluding tax (€ ET) to which on add the applicable taxes (VAT).
If so, the applicable taxes in the Client’s country, custom fees, import/export taxes, transport/transit taxes, etc. remains in responsibility of the Client.
9.2 – Invoices are payable, upon receipt of the invoice.
Either way, Client’s payment obligation is fulfill when the amount in Euros is definitely credited in benefit of BYSTAMP. No discount shall be granted in case of early payment.
9.3 – By express agreement, and except requested report on time and agreed by the Client, the lack of total or partial payment at the due date of any sum owed at Contract title shall result in full right and without prior formal notice, the invoicing to the Client of a late-payment interest equal to three times the legal interest rate, latest published rate on the invoice date, interest being owed by the mere fact of due date of the contract term. Interest is calculated prorata temporis over the period of one month. Furthermore, in case of late payment, the Client is liable of full right of a fixed compensation for an amount of recovery fee of 40€. These fees could be charged for real on the presentation of supporting documents (e.g.: bailiff, lawyers’ fees …).
9.4 – BYSTAMP can modify its tariffs at any time. However, modifications shall not apply but at the time of the Contract extension. In case of disagreement from the Client part, it could terminate the Contract by sending an email to BYSTAMP. For this reason, termination shall take effect 1 month from the modifications take of effect.
ARTICLE 10 – Client obligations and responsability
10.1 – It is up to the Client of ensuring the service offer adequacy of BYSTAMP at its own needs, notably over the base of indications provided in the commercial documentation and/or proposition sent to him, which they acknowledge having taken note of.
Having failed to request BYSTAMP to ask him for further details and/or assist to a further demonstration of the BYSTAMP Solution, prior to the signature hereof, the Client acknowledges he has been sufficiently informed.
The Client acknowledges subscribing to the BYSTAMP Solution in full knowledge of its content and its performance and, professionally. Except in case of noticing a malfunction that is preventing to have access to Data, the Client accepts therefore the supply of the BYSTAMP Solution in the state, with its potential flaws, which does not constitute a sufficient reason for Contract termination.
10.2 – The Client commits to respect, since the beginning of the contract relationship and all along the execution thereof, its collaboration obligation with the BYSTAMP equipment and in particular, if so, at the time of requests of information of the BYSTAMP part notably in case of alert or a malfunction occurrence.
10.3 – Concerning the software included in the electronic stamp and the Software Development Kit (SDK), it is strictly forbidden to the Client to proceed at any analysis of these in the type of reverse engineering operations or even decompilation.
10.4 – The Client guarantees BYSTAMP that he respects any regulations related to the protection of personal data notable the Regulations (EU) 2016/679 of April 27, 2016. On its part, at any moment, BYSTAMP does not register personal data.
10.5 – The Client commits to put at BYSTAMP disposition, by means of Web Services, the number of validations of each Service for each STAMP, over a daily frequency at least for statistics purposes.
ARTICLE 11 – BYSTAMP obligations and responsability
BYSTAMP obligations at the Contract execution title are expressly recognized by the Client as being the best-effort obligations. Thus, BYSTAMP implements the best known and reasonable ways in respect of best practices, in accordance with the laws and rules in force, and in accordance with the ethics of its profession to execute the services thus, especially concerning the fight against intrusions and other malevolencies.
Thus, it is recalled to the Client that the BYSTAMP Solution uses SaaS technology. For this reason, it can be affected directly (response time, difficulty to reach the servers, etc.) by disturbances on the telecommunications global networks (« Internet »). The Client declares being informed of the complexity of these networks and the congestion resulting from the influx, at certain hours, of Internet users.
It is expressly agreed upon between the Parties that BYSTAMP responsibility, if the BYSTAMP fault is recognized, does not cover the indirect damage that is specially operating losses, loss of earnings, commercial or financial prejudice, increase in general expenses, potentially suffered by the Client.
BYSTAMP responsibility shall not be committed that over the demonstration of a fault attributed to BYSTAMP.
It cannot be committed in case of Force majeure as it is described below.
BYSTAMP responsibility shall not be committed in case of non-compliant use of the BYSTAMP Solution by the Client or if the Client does not really appreciate the capacity of its technical and computing environment (software, Internet flow, etc.) nor performed the maintenance and the updates of its software efficiently or even failed to its collaboration obligation as described above at the article « Client Obligations and Responsibility ».
It is expressly agreed that, if the BYSTAMP responsibility had been acknowledge judicially in the execution thereof, the Client could not pretend other indemnities and monetary damages that the reimbursement of payments made by him during the last 12 (twelve) months, under the license of use of the BYSTAMP Solution.
ARTICLE 12 – Termination and consequences of termination
12.1 – in case of failure or breach by one party to the other of any obligations put under its responsibility at Contract title, the other Party could address the responsible Party of the breach a formal notice, by register letter with acknowledgement of receipt, of having to execute its obligation or to cease its behavior forbidden by the Contract.
In such a hypothesis, if the formal notice rest ineffective, entirely or partially, at the expiration of a period of thirty (30) days from its receipt (date of the first presentation by the postal system), the Party victim of the breach could if it deems appropriate, terminate in full right the Contract by a simple notification addressed by a registered letter with acknowledgement of receipt to the other Party, without prejudice of any claims for compensation of the harm suffered.
12.2 – In all cases of termination, Client’s usernames shall be log off.
ARTICLE 13 – Force majeure
Besides the events usually retained by the French jurisprudence in case of force majeure, the Parties obligations shall be automatically suspended in the hypothesis of events independents of its express intention preventing the normal execution of the Contract, such as earthquakes, the fire or the flood of business premises of the activity of either Parties, the storm, the blocking of means of transport for some reason that is, the total or partial external strikes at the company, the total or partial blocking, regional, national or international of telecommunications and the total or partial blocking, regional, national or international of computer networks. It is also a case of force majeure, a technical breakdown caused by malicious acts (e.g.: hackers’ attacks).
The Party noticing the event should without delay inform the other Party of its impossibility to execute the service and justify himself to this. The suspension of obligations could not be in any case a liability cause for the non-execution of the obligation in cause, nor induce the payment of damages and interests or delay penalties.
However, from the disappearance of the cause of suspension of their mutual obligations, the Parties shall make all their efforts to resume the normal execution soon as possible of their contract obligations.
In case of extension of the case of force majeure beyond a period of 3 (three) months, the current Contract could be terminated by registered letter with acknowledgement of receipt, unless agreement between the Parties.
ARTICLE 14 – Amendments to the contract
BYSTAMP reserves the right to modify, at the time of its prorogation, the Contract provisions which include the financial conditions. The modifications shall be brought to the knowledge of the Client by sending an email to the email address indicated by the Client and shall enter into force two months from their receipt by the Client.
In case of disagreement, from the Client part, he could use his option of termination by sending an email to BYSTAMP. For this reason, termination shall take effect 1 month from the modifications take of effect.
ARTICLE 15 – Miscellaneous provisions
15.1 – Declaration of mutual independence
Each Party is an independent business owner and none of the provisions of the current Contract shall create a society, in deed or in law, joint-venture, a mandate, a franchise contract or commercial agent or a wage-earning relationship, between the Parties.
15.2 – In case of translation of either contract documents composing the Contract, only the French version shall prevail.
15.3 – The Parties accept and acknowledge as valid proof that can be used for legal matters, any email exchange, between them.
15.4 – Nullity of any Contract clause shall not affect the validity of the other clauses; it shall carry on in absence of the voided clause.
15.5 – Tolerance
The fact for either Party of not prevail of a failure of any obligations referred hereof should not be construed in the future as a waiving at the possibility of complaint of the par of either Parties concerning the obligation in question.
ARTICLE 16 – Litigation
The current Contract is governed by French law.
Any litigation relating to the Contract, resulting notably of its signature, its execution, its interpretation, its termination, or its validity, must imperatively be subject of an amicable solution attempt by the Parties.
For this purpose, the Parties agree to meet in the 15 (fifteen) days since the reception (date of the first courier presentation by mail services), by one of the Parties, of the litigation notification by registered letter with return receipt requested addressed by the other Party.
In the absence of an amicable solution to the litigation in the 15 (fifteen) days of the reunion of Parties in the conditions referred to the paragraph below, the litigation must then be submit to the competent jurisdiction according to the modalities defined hereunder.
Failing an amicable agreement, the Parties shall submit all litigations, even in the case of recourse to a warranty or plurality of defendants, to which the current Contract could give place, and that much for its validity, its interpretation, its execution or its termination, to the PARIS (FRANCE) commercial court (75), except for the case where the litigation is within the jurisdiction of the High Court of PARIS in application of applicable provisions of the Intellectual Property Code.