Terms of Service



BETWEEN THE UNDERSIGNED PARTIES


BLUE BADAM,

A simplified joint stock company with share capital of €5,000 entered on the Valenciennes Trade and Companies Register under number 825 393 739 Having its registered office at 15 avenue Alan Turing in ANZIN (59410) Represented by its Chairman, Stéphane ROGER, residing in this capacity at said registered office.

Contact address: stephane.roger@bluebadam.com

Hereinafter referred to as the “Company”

ONE THE ONE HAND,

AND

Any person wishing to benefit from the Solution functions as offered by the Company


Hereinafter referred to as the “Client”,

PARTY OF THE SECOND PART,

Hereinafter referred to individually as a “Party” and collectively as the “Parties”


WHEREAS:

BLUE BADAM has developed a solution allowing for opinions and comments to be requested and received from third party contributors over images/graphics proposed by the Client (hereinafter referred to as the “the Solution”). The Solution functions are outlined under ARTICLE 8 herein.


The Client wishes to be able to benefit from the Solution.

In this context, the Parties have come together so as to agree on terms and conditions for access to the Solution by the Client.

IT HAS THEREFORE BEEN AGREED ON THAT WHICH FOLLOWS:

ARTICLE 1 OBJECT


The purpose of the present Agreement is to outline the terms and conditions in line with which the Company offers the Client access to the Solution accessible on its servers via the internet at the following address: https://www.bluebadam.com.


ARTICLE 2 DEFINITIONS


“Contributor”: Refers to any natural person, who is a capable adult, and who uses the Solution to post Contributions.

“Solution”: Refers to the solution which is outlined in the present General Terms and Conditions, as described in the preamble.

“Access Codes”: Refers to the login and password enabling access to the Solution by the User.

“Client”: Refers to a natural person having subscribed, with BLUE BADAM, a SAAS Licence Agreement allowing it to benefit, in whole or in part, from the Solution functions.

“Content”: Refers to all multimedia elements (images, graphics, videos etc.), as well as all associated elements (text, documents, presentations, media etc.) integrated into the Proposals submitted by a User with a Client account.

“Contribution”: Refers to all opinions, comments, annotations and notes expressed by a Contributor pertaining to Content proposed by a Client.

“Proposal”: Refers to all Content describing an idea or publication that the Client will put into competition with other Proposals whilst awaiting the Contribution of Contributors.

“Chat”: Refers to the direct chat tool proposed to Users so as to exchange over Proposals.


ARTICLE 3 TERMS AND CONDITIONS FOR ACCESSING THE SOLUTION


Access to the Solution is subject to prior subscription by the Client of the present Licence Agreement.

The Client should be a capable adult.

The Client should indicate, at the time of subscription, his login and access codes which will enable direct access to the Solution.

Only the Client may benefit from access to the Solution. Any access by a third party is subject to prior express authorisation of BLUE BADAM.

Access to the Solution can be undertaken via a terminal with an internet connection.


ARTICLE 4 TERM


The present Agreement is concluded, in line with the choice of the Client expressed at the time of subscription:

  • for a period of one month
  • OR for a period of one year


This term will run from the time of confirmation, by email sent by BLUE BADAM to the Client, at the address indicated in the subscription request, of said subscription.

The agreement may be tacitly renewed upon expiry for an identical term to that of the initial subscription, notwithstanding termination undertaken at least 8 (eight) days prior to the due date of the current Agreement.

Termination will be effective upon expiry of the current period. Amounts paid by the Client for the give period will be retained/due by/to BLUE BADAM.

The “Free” offer is, however, subscribed for an indefinite term and may be terminated at any time in line with the terms and conditions outlined hereunder.

Termination should, in all instances, be undertaken in writing (email, fax, letter) in such manner so as to allow for verification of receipt, by the other Party, of said letter.


ARTICLE 5 FINANCIAL TERMS AND CONDITIONS


The Solution can be accessed via:

  • The “Free” offer;
  • OR the “Creative” offer;
  • OR the “Visual Survey” offer.

In “Free” Mode, the Solution is free to access. Only certain functions of the Solution are available in “Free” mode and other functions are available but limited (Cf. ARTICLE 7).



In “Creative” mode, the Solution can be accessed in return for payment of the following amount by the Client:

  • 5.90 euros excluding VAT/month when the agreement is concluded for a monthly period;
  • 4.90 euros excluding VAT / moth equating to 58.80 euros excluding VT / year when the Agreement is concluded for an annual period.


In “Visual Survey” mode, the Solution is accessible in return for payment of the following amount by the Client:

  • 18 euros excluding VAT/month when the agreement is concluded for a monthly period;
  • 15 euros excluding VAT / moth equating to 180 euros excluding VT / year when the Agreement is concluded for an annual period.


This amount is payable by the following methods: Bank card (Carte Bleue, Visa or Mastercard), PayPal and bank transfer.

Pursuant to the law of 2012-387 of 22 March 2012, for payment delays, the Client is a professional and is ipso jure debtor towards the Company of fixed-rate compensation for recovery of up to €40.

In the event of any delay in payment of the Client in excess of 30 days following the due date, the Company will be entitled, 48 hours after notification of the Client by any means, to suspend access to the Solution until said amounts have been paid in full.

The Company hereby reserves the right to amend applicable rates at any time. The Client will be notified by the Company. The new prices will be applicable to any new subscription or tacit renewal of the Agreement occurring after the effective date of the change.


ARTICLE 6 OBLIGATIONS OF THE CLIENT


ARTICLE 6.1 – COMPLIANCE WITH REQUIREMENTS

The Client hereby ensures to be aware, prior to acceptance hereof, of all functions, technical characteristics and security mechanisms of the Solution, as well as pre-requisites necessary for use thereof.

The Client will personally be responsible for all hardware (hardware and software) required for use of the Solution online.

It is notably incumbent on it to ensure compliance of the Solution with its hardware and software, and notably reliability of its internet connection.

The Client ensures regular backup of Content, Proposals and associated Contributions as well as, where applicable, of discussions undertaken on the Chat tool in the Solution.

It should regularly update its hardware and internet connection.


ARTICLE 6.2 – USE OF THE SOLUTION



The Client hereby undertakes only to use the Solution for its own requirements and for those purposes outlined herein.

The Client hereby refrains from processing, distributing, downloading or send, via the intermediary of the Solution, any Content or Proposals of which operation would breach the rights or best interests of third parties and harm public law and order or run contrary to legislation and regulations in force. This is the same for all exchanges undertaken via the Chat tool on the Solution.

The Client hereby refrains from sending, via the Solution, computer viruses or more widely any programs designed to interrupt, destroy or limit the functions of the Solution or its environment.

The Client ensures that it has received all rights and authorisations necessary for distribution, by itself, of Content and Proposals in the framework of use of the Solution.

The Client hereby refrains from developing, selling, directly or via the intermediary of a third party, the Solution outlined herein or any solution which competes herewith.

The Client hereby undertakes to regularly notify the Company of any default which may affect the Solution or any proposed improvement/correction which it deems necessary so as to make the Solution more effective, efficient and suitable for its requirements.

The Company has no obligation to undertake developments, corrections and improvements as notified by the Client.

Access codes are personal and confidential.

Use and protection of Access Codes is the sole liability of the Client. The Company may not be held liable for any loss or damage which results from a default by the Client to respect these requirements.

The Client hereby confirms to be solely and exclusively liable for these Access Codes. Users alone shall accept the consequences of any use by third parties who gain hold thereof.

ARTICLE 7 OBLIGATIONS OF BLUE BADAM


ARTICLE 7.1 – LA AVAILABILITY OF THE SOLUTION

BLUE BADAM hereby undertakes to take all reasonable measures so as to guarantee the Solution is available 365 days a year, 24 hours a day and 7 days a week, excluding case of force majeure, technical difficulties and/or IT issues and/or telecommunication problems and/or maintenance periods (and notably updates).

BLUE BADAM hereby reserves the right to immediately interrupt, without notice, access to the Solution for all Clients/Contributors and/or individually for a Client/Contributor:

1° In order to undertake a technical intervention or for maintenance. Insofar as possible, BLUE BADAM will previously notify the Client.

2° In the event of using the Solution contrary to these presents.



ARTICLE 7.2 – CONFIDENTIAL AND SECURE ACCESS

Generally, BLUE BADAM hereby undertakes to implement all technical means which comply with the technical standards, so as to maintain the integrity, security and confidentiality of access to the Solution and Content, Proposals and Contributions exchanged via the Solution.

Use of the Solution is undertaken via encryption through SSL online.



ARTICLE 7.3 – DEVELOPMENT OF FUNCTIONS



BLUE BADAM hereby reserves the right to undertake modifications in the presentation, operation or functions of the Solution, and at any time, without prior notice.


ARTICLE 7.4 – HOSTING AND MAINTENANCE

BLUE BADAM is responsible for hosting the Solution in line with terms and conditions for security and access to premises and in line with rules of the trade.



BLUE BADAM is responsible for maintenance and correction of the Solution so as to ensure its sustainability and availability in the framework of an obligation of means.

The Client automatically benefits from any update undertaken by BLUE BADAM over the Solution.



ARTICLE 7.5 – FUNCTIONS AND USES



BLUE BADAM does not guarantee that the functions of the Solution may be adequate for any particular use for which provision is made by the Clint, upon whom it is incumbent to previously check adequacy of functions with requirements.


ARTICLE 8 FUNCTIONS OF THE SOLUTION


With the “Free” Offer, the Solution allows the Client:





The number of Contributors is limited to 10 if the Chat is activated, otherwise to 200. Each Proposal is limited to 3 images and each image may be up to 1 Mb. Each Proposal is limited to 1 attachment and each attachment may be up to 3Mb.

The Client hereby acknowledges and accepts the presence of adverts.

With the “Creative” offer, the Solution allows the Client:





The number of Contributors is limited to 20 if the Chat is activated, otherwise to 200. Each Proposal is limited to 5 images and each image may be up to 3 Mb. Each Proposal is limited to 3 attachments and each attachment may be up to 10 Mb.



With the “Visual Survey” offer, the Solution allows the Client:





The number of Contributors is limited to 10 if the Chat is activated, otherwise to 500. Each Content is limited to 5 images and each image may be up to 1 Mb. Each Proposal is limited to 1 attachment and each attachment may be up to 3Mb.


ARTICLE 9 INTELLECTUAL PROPERTY


The Company grants to the Client a personal, non-exclusive, non-transferrable and non-sellable right of use of the Solution for the entire term of the Agreement and for the whole world.

The Client may only use the Solution pursuant to its own requirements

The Company holds all intellectual property rights pertaining to the Solution and notably all graphics, text, software or other components forming the Solution.

The Client hereby undertakes not to infringe the intellectual property rights of the Company and refrains, consequently, from reproducing any element protected by intellectual property rights, failing prior express consent.

The present Agreement does not confer the Client any right of ownership over the Solution, which remains the whole and exclusive property of the Company.

Consequently, the Company hereby expressly reserves the right to intervene in the Solution so as to ensure it is used for its due and proper purpose.

The Client hereby formally refrains from intervening or commissioning any third party in the Solution, without express consent.

Provision of the Solution may not be considered as a transfer as defined by the Intellectual Property Code of any intellectual property right to the Client


ARTICLE 10 PERSONAL DATA PROCESSED BY THE CLIENT


The Client hereby recognises and accepts that all personal data processed in the framework of use of the solution is undertaken under its own liability and should be undertaken in compliance with provisions resulting from the data protection and freedom of information act of 6 January 1978.

Consequently it is incumbent thereupon to implement any prior formality required with the CNIL and to respect its obligations in terms notably of notifying people concerned of their rights concerning processing implemented.

The Company acts pursuant to regulations applicable to data processing, following instructions documented by the Client, and takes all measures to ensure confidentiality and security of data processed in the framework of use of the Solution by the Client.

The Company hereby undertakes not to use, sell or provide to third parties, for any reason whatsoever, personal data which i sis led to process herein.

  The Company ensures that its staff authorised to process personal data undertakes to respect confidentiality.

The Company provides the Client with all information required to show respect by the latter of its obligations pertaining to personal data and to allow, where applicable, the Client, at its cost and under its liability, to undertake audits of which the practical terms and conditions will be defined between the Parties.

The Company immediately informs the Client of:



The Company also notifies the Client that all data is hosted within the European Union and that it respects legislation in force within the European Union.


ARTICLE 11 PERSONAL DATA PROCESSED BY THE COMPANY


The Company hereby informs the Client that personal data concerning itself or its employees and contributors whose opinion and comments it requests will be processed pursuant to the Data Protection and Freedom of Information Act of 6 January 1978, for management of client relations. This data is stored for the entire term of contractual relations between the Client and Company increased by 36 (thirty six) months.

The Company also has, pursuant to its legal obligations, for a term of 12 months following registration, connection data for the Solution by the Client and Contributors.

The Client and its employees have a right to access personal data for rectification, correction, and deletion of data which is not adapted, incomplete, equivocal or obsolete.

This right may be exercised by contacting the Company at the address herein.

The Company hereby undertakes not to transfer any information pertaining to the Client or its employees to third parties, aside for sub-contractors and service providers to whom it may have use in the framework of service provision conferred to said third parties, pertaining to it contractually in conditions which comply with the Data Protection Act.

Data processed by BLUE BADAM is not transferred by itself outside of the European Union.

The Client has the right to notify the Company, by any written means allowing receipt to be confirmed by BLUE BADAM, of tis directives pertaining to the use of this data in the event of death (notably concerning communication to a third party).

Failing directives, heirs of the Client may exercise, after death, all rights recognised by the Data Protection and Freedom of Information act of 6 January 1978 for the sole purpose of:

- organisation and resolution of the Client estate. Consequently, heirs may access personal data which concerns it so as to identify and be notified of all necessary information for administration and division of the estate. They may also be notified with digital assets or data pertaining to family souvenirs transferrable to heirs;

- consideration by BLUE BADAM, of the death of the Client. Consequently, heirs may undertake closure of the Client account, object to the continued processing of personal data concerning it for updates.

It is hereby reiterated that the Client may amend of dismiss its directives at any time.


ARTICLE 12 CONFIDENTIALITY


Each Party hereby undertakes to consider as confidential, and not to reproduce or disclose, other than for the sole and exclusive purpose of the Agreement, information issued by the other Party for implementation and during performance of the Agreement and which, due to their technical, commercial or financial content, should be kept confidential as including elements not disclosed publicly and/or purely personal to the Party concerned.

This obligation of confidentiality is not applicable to information for which the Company may show that it was known by its departments in any other manner than in the framework of performance hereof or which was already in the public domain.

This duty of confidentiality will not be applicable where a Party is under the obligation of providing information pursuant to legal provisions, decrees by a public body or legal decisions.

Obligations of the Parties towards confidential information will remain in force during the term of the Agreement and for as long, after its expiry, as information concerned remains confidential for the disclosing Party and, in all instances, for a period of five [5] years after the end of the Agreement.


ARTICLE 13 GUARANTEES AND LIABILITY


The Client hereby undertakes to immediately notify the Company of any counterfeit of the Solution about which it is aware, with the Company being free to take all necessary measures.

The Company is only bound by commitments appearing herein by an obligation of means.

The Client is notified of technical issues inherent to the Internet and suspended access which may result. Consequently, the Company will not be held liable for any non-availability or slow performance of the Solution.

The Company is unable to guarantee continued use of the Solution, performed remotely online, which the Client accepts.

The Parties hereby expressly agree that the Company may not be held liable for interruption to use of the Solution or any damages pertaining to:





The Company may not be held liable for any indirect damages or losses, lost profits, or planned savings, lost income or not directly resulting and exclusively from default of the Solution, nor any third party redress.

In all instances, the Parties hereby agree that the total amounts which may becharged against the Company if its liability is incurred for any reason whatsoever should be limited to a total corresponding to amounts actually paid by the Client to the Company during the term hereof.

The Client is liable for damages of any nature, material or immaterial, direct or indirect, caused on any third party, including the Company, due to illegal use or operation of the Solution, regardless of the cause and place of occurrence of the damage.

Moreover, BLUE BADAM has, concerning Content, Proposals and Conditions, and all exchanges undertaken via the Chat, the capacity of host. It is not, consequently, bound by any general obligation of supervision of Content, Proposals, Contributions and exchanges.

It is incumbent upon the Client to ensure the legality of Content and Proposals offered and exchanges undertaken by it in the Chat.

In such instance as BLUE BADAM should receive any notice, in line with the terms and conditions set forth under ARTICLE 6 of the law of 21 June 2004 in confidence in the digital economy, notifying it of the existence of Content, Proposals or exchanges which are clearly illicit, BLUE BADAM will remove this and reserves the right to suspend access to the Solution by the Client.

The Client hereby relinquishes taking any redress against the Company in the framework of legal action taken by third parties against it due to illegal use or operation of the Solution.


ARTICLE 14 TERMINATION


Any serious misconduct by a Party in any of the obligations incumbent thereupon by the present Agreement, not remedied within 15 working days following the issue of a recorded delivery letter with acknowledgement o receipt, will lead to the entitlement for the other Party, to unilaterally claim termination of the present Agreement without prejudice for all damages and interest which it may claim in the framework hereof, and subject to the notice period hereinabove.

Moreover, in the event of total inactivity (non connection) by the Client accessing the Solution in the framework of the “Free” offer (non connection) during an uninterrupted period of 12 months, the agreement will be terminated ipso jure by the Company after issue to the Client of notice inviting it to connect remaining without remedy.

It is incumbent upon the Client to take, prior to removal of access to the Solution and at the end of the agreement as soon as possible, all necessary measures to reclaim Content, Proposals and Contributions.

The Client hereby recognises and accepts that Content, Proposals and Contributions will, in all instances, be automatically deleted by the Company following expiry of a period of thirty days following the date of termination of the Agreement.


ARTICLE 15 RIGHT OF RETRACTION


The Client has the capacity of consumer as defined under the Consumption Code and has a period of fourteen days in which to exercise a right of retraction of the present Agreement, without needing to motivate the decision or bear costs other than those for which provision is made hereunder.

This deadline runs from the date of conclusion of the Agreement.

Pursuant to article L 221-25 of the Consumer Code, any Client wanting access to the Solution to be effective prior to expiry of the retraction period accepts and acknowledges to be liable towards the Company, in the event of recognising the right of retraction, for the total amount corresponding to the service provided until communication of the retraction decision.


ARTICLE 16 SUB-CONTRACTING


The Client accepts that the Company sub-contracts its obligations. The Company is then liable for work undertaken by sub-contractors in line with terms and conditions identical to those of its own missions.

The Client expressly authorises the Company to, where applicable, recruit one of its sub-contractor(s) in the framework of processing personal data as undertaken on behalf of the Client.

The Company stands guarantor for respect, by its sub-contractors, of legal and regulatory obligations in force and pertaining to processing personal data where such personal data is, in the framework of said sub-contracting, conferred to sub-contractors.


ARTICLE 17 PROOF


Electronic registers in IT systems of the Company or sub-contractors in reasonable and secure conditions, will be considered as proof of communication, orders and payments made between the Parties.


ARTICLE 18 INTEGRALITY AND INDIVISIBILITY


The present Agreement represents the entire agreement between the Parties. If any provision in the present Agreement should be declared as inapplicable for any reason whatsoever, all other provisions in the present Agreement will remain in force, and the inapplicable provision will be amended as far as possible and in the limit authorised by law to have, where possible, the same economic effect as the original provision.

No indication or document may lead to the creation of obligations in the framework of these presents, if not the object of an addendum duly signed by both Parties.


ARTICLE 19 APPLICABLE LAW AND JURISDICTIONAL CLAUSE


The present Agreement and the relations which ensue between the Company and Client are governed by French laws and will be interpreted pursuant thereunto.

In such instance as any dispute should arise between the parties due to performance of interpretation of the present agreement, the Parties hereby undertake to refer the matter for amicable proceedings as defined hereunder, prior to referring the matter to the Court holding jurisdictional competence.

With a view to collectively seeking a solution to any dispute which may arise in performance of the present Agreement, the Client hereby agrees to previously contact BLUE BADAM at the address indicated herein.

The Client will outline the dispute for which it is contacting BLUE BADAM, along with all supporting documentation.

On the basis thereof, BLUE BADAM hereby undertakes to respond as soon as possible to the Client to seek an amicable solution.

If, following thirty days following a response by BLUE BADAM, the Parties do not manage to reach agreement about a deal o solution, the dispute will be referred to the courts.

Moreover, pursuant to the provisions set forth under articles L 612-1 et seq of the Consumer Code, the Client has the capacity of consumer as defined by the aforementioned code and is able to make free use (aside for any potential lawyer or expert appraisal fees) to a mediator, with a view to amicable resolution of the dispute between it and BLUE BADAM.

For this reason, the Client may contact the mediator(s) at the following address: https://app.medicys.fr.

Moreover, the Client is able to have redress with the European Application for Online Dispute Resolution (RLL) accessible at the following address: http://ec.europa.eu/consumers/odr/

It is hereby indicated that the mediation request by the Client will only be liable if:





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