Allgemeine Geschäftsbedingungen für den Verkauf und die Nutzung BeezUP
All contractual relationships between the company BeezUP (hereafter “BeezUP”) and its clients (hereafter “Clients” or “Client”) are goverened, without limitation nor reservation, by the present terms and conditions (hereafter “Business Terms and Conditions”) possibly supplemented by information provided on the purchase order form available on BeezUP’ website and allowing Clients to subscribe to the services offerings of BeezUP, a French société par actions simplifiée with a capital of 11,743 Euros, with its registered office located 10, Rue de Penthièvre, 75008 Paris, France, registered with the Paris Commercial registry under No. 514 206 291.
For regulatory reasons BeezUP cannot offer its services to legal persons or natural persons engaged in regulated sectors such as health services.
Hereby, the Clients warrants and guarantees that it does not carry on its business in a regulated sector and recognizes that it is acting as a professional merchant.
Before placing any order, the Client acknowledges having read the BeezUP’s Business Terms and Conditions that may be updated at any time by BeezUP. The validation of the order shall mean an unconditional acceptance of the BeezUP’s Business Terms and Conditions and use of the Services shall mean acceptance by the Client without reservation of any future updates of the Business Terms and Conditions made by BeezUP. Contractual relations between BeezUP and Client shall be exclusively governed by these Terms and Conditions and, additionally, by the terms of the order.
It is expressly provided that BeezUP is external and independent to the channels as defined hereafter in the present Business Terms and Conditions. Contractual relationships between the Client and the channels shall be ruled exclusively under the channel’s business terms and conditions which the Client agreed to otherwise. It is also expressly provided that all fees and costs for the subscription by the Client to the services of the said channels shall be borne by the sole Client.
At any time, the Client is entitled to freely consult these Business Terms and Conditions on BeezUP’s Website, to save and / or print them.
1. OBJECT OF THE BUSINESS TERMS AND CONDITIONS
All contractual relationships between BeezUP and the Client are governed, without limitation nor reservation, by the present Business Terms and Conditions possibly supplemented by information provided on the purchase order form.
Should there be any inconsistencies between the terms of the purchase order form and these Business Terms and Conditions, the terms and conditions indicated on the order form shall prevail.
2. DESCRIPTION OF BEEZUP SERVICES
3. DURATION – TERMINATION
These Terms and conditions shall take effect on the Client’s first connection to BeezUP’s websites and shall govern all relationships between BeezUP and the Client for the access and provision of any Services whether for a cost or free of charge.
Subscription to the Services by the Client shall be initially made for a firm twelve (12) month period, tacitly renewed for a twelve (12) month period, unless otherwise terminated by the Client who can cancel its subscription on its personal account or by either party by registered letter with return receipt to the other party thirty (30) days before the expiration of each period.
3.2 Effect of the Non Renewal
Subscription to the Services is made for firm periods of time, renewable under the same terms and conditions. Therefore, all amounts paid or due regarding a contractual period that has already begun shall remain due to BeezUP and will become immediately payable from the date of termination by the Client, being provided that the termination takes effect upon the end of the contractual period in progress.
The Client will remain liable for the payment of variable prices resulting from the use of the Services during the remaining time between the notification of the termination of the contract by the Client and the actual end of the contractual period in progress. The Client shall pay to BeezUP any sum that may be due under the execution of this contract, including the varying price that remains due on the day of the contract’s termination. Lump sums paid to BeezUP in return for the subscription to services shall be retained by BeezUP.
The contract’s non-renewal shall lead to the end of services’ provision by BeezUP on its effective date. In case of termination of payable Services at the end of a contractual period, the Client will be automatically redirected toward free Services.
In case either party fails to perform its contractual obligations as defined under these Business Terms and Conditions, the non defaulting party may terminate them automatically with exclusive fault in the other party, if the defaulting party does not put an end to such failure within thirty calendar days following the date of reception of the notification the other party may send to it by registered letter with acknowledgement of receipt, without prejudice to the damages the non defaulting party may be entitled to claim.
In case of non-payment or partial payment from the Client, BeezUP reserves the right to suspend all current and future Services after sending the Client an injunction by email at the address corresponding to his username that had no effect.
The exercise of this option of suspension shall not cause the termination of the Agreement and the Client shall remain liable for all sums that may be due under the execution of this contract, including the varying price that remains due untill the end date originally provided by the Contract. Lump sum payments made to BeezUP in consideration for the Services subscription will be retained by BeezUP. It is also specified that such suspension being justified by a contractual breach of the Client, it shall not open any right to compensation for the Client.
Furthermore, and as an exception to the provisions of Article 3.1 hereof, if the contract comes to an end during the suspension, it will not be renewed automatically.
4. PROCESS OF ORDER
To subscribe to BeezUP’s services the Client shall follow the following order process:
4.1 Registration – Identification
The Client shall choose a username (email address) and a password to create an account (hereinafter the “Client Account”). The access code communicated to the Client is personal, confidential and non-transmissible.
The system shall then perform a control of the identifier’s uniqueness. Creating a Client Account shall enable the Client to access an interface granting it access to BeezUP’s services (hereinafter “the Interface”). In case of loss of password, the Client shall click on the “forgotten password” checkmark and the system shall automatically send a new password to it via email.
The Client shall be solely responsible for the use of its access codes which it agrees to not divulge to third parties. Using the provided access codes lets presume that any transaction undertaken after entering such access code is the Client’s doing. The Client further agrees not to capture third party’s access codes. In case of a loss of its access codes and / or use of its access codes by a third party, the Client agrees to inform BeezUP without delay. BeezUP shall not be held liable for any tampering on the Client Account when the Client’s access codes are used by a third party.
The Client may bind several Client Accounts to one interface. In this case, the Client remains solely responsible for any use performed from such Client Accounts.
In case of malicious use of a Client Account by a third party, the Client can contact BeezUP’s support service to restore its Account subject to the fact that the Client is able to provide sufficient guarantees and elements to attest its identity.
Upon its order, the Client shall choose the Service it wishes to subscribe to. The order shall then be subject to a summary that includes the elements of the order, namely the cost of subscription and the selected service. BeezUP shall confirm the acceptance of its order to the Client by email. The order shall be firm and final only after BeezUP confirmed such order. BeezUP reserves the right not to accept an order, especially for the following reasons: litigation concerning the payment by the Client of sums due under a previous order, or nature of products excluded by the provision of services.
4.3 Services activation
(a) Transfer of the Client’s file of products to BeezUP
Once the Client’s order is validated by BeezUP, the Client shall send its catalogue of products it wishes to be referenced on the selected channels’ websites, in accordance with (b) hereunder, either in the XML (Extensible Mark-up Language or CSV (Comma-separated values) format.
The Client may send its file of products either by rendering it available on an FTP (File Transfer Protocol) server or via a URL (Unified Resource Locator), or, otherwise, by transferring it directly via its browser on BeezUP’s interface.
The Client’s file of products should be as complete as possible and meet BeezUP’s specifications listed in Appendix 1. Any incomplete product description or any description that does not meet the annexed specifications shall lead to said product being withdrawn from the catalogue.
(b) Choice of channel(s)
The Client shall select on the Interface the channel(s) which it wishes to reference its products with and shall accept such channels’ terms and conditions on its own accord.
The list of compatible channels that is available on BeezUP’s website is provided only as an indication, and BeezUP reserves the possibility to alter it at any time. BeezUP shall not be held liable for the consequences resulting from technical modifications brought on by these channels that may lead to a temporary or permanent incompatibility with BeezUP services.
(c) Providing the Client and / or the channel with a URL containing the files of products for each channel
The tools provided by BeezUP allow the Client to structure the data of its catalogue, and to make it available through a specific URL for each selected Channel. Therefore, the Client can send to each Channel the address to access its catalogue in order to reference it on the Channels under the technical standards and conditions agreed between the Client and the Channels.
The Client can also perform the referencing of its catalogue through a specific Application Programming Interface (hereafter “API”) made available by BeezUP to the Channels, to the sole extent that the concerned Channels use BeezUP’s API. Please note that when the catalogue is provided through an API, BeezUP shall not provide a URL to the Client.
In any case, BeezUP shall not be held responsible notably for (i) any delayed upload of data on a Channel or (ii) any delay or impossibility to upload an incomplete catalogue because the Client is solely responsible of the compliance of the catalogue’s content and structure to the requirements imposed by the selected Channel.
(d) Client’s Interface
The Client may access the Interface provided to it by BeezUP at any time via its Client Account. That Interface shall enable it to have access to the invoices issued by BeezUP online, to manage its Client Account and its services.
Accessing the Interface shall enable it to update its file of products. This update may be performed daily. The update of products’ description on channels’ websites shall be taken into account as quickly as possible, depending on the channels’ technical requirements and their general terms and conditions for services the Client accepted.
(e) Accessing the Interface
Access to the Interface shall be ensured permanently, subject to periods of maintenance, servers update operations and servers’ potential exceptional interruptions.
5. FINANCIAL CONDITIONS
5.1 Price breakdown
The price payable by the Client to BeezUP shall be further detailed during the subscription to the Services depending on the offer chosen and that may consist in a fixed price and / or a variable price indexed on the number of clicks generated from the Channels to the Client’s website.
5.2 Price adjustment
BeezUP shall be free to reconsider the price for its services provision at any time. Changes of price shall not be applied to a Client during an engaged contractual period. Changes shall be effective for all renewal of Services provided such changes have been brought to Clients’ knowledge by any means one week prior to the renewal of the said Services.
The fixed portion of the price shall be charged in advance. The variable portion of the price shall be paid on the following month. The fixed portion of the price only covers the subscription to the Services for the duration chosen by the Client and will be charged on the day of the activation of the Account by the Client. This invoice is payable immediately for any payment by credit card or within 14 days for other payment methods.
From the second month, the Client shall pay a monthly invoice which corresponds to the variable price for the elapsed monthly period. These monthly-issued invoices are payable immediately for any payment by credit card or within 14 days for other payment methods. All invoices relating to the subscription to BeezUP Services will be sent to the Client by email.
All orders and invoices are archived by BeezUP on reliable and durable media so as to correspond to a faithful and durable copy pursuant to article 1348 of the French Civil Code.
The Client expressly accepts, without limitation or reservation, to receive invoices exclusively by electronic means in accordance with Article 289 VI General Tax Code. The Client undertakes not to challenge the probative force of the electronic invoices sent by BeezUP.
The Client agrees that all invoices relating to the Services will solely be communicated in PDF format to the email address provided to BeezUP for the subscription to the Services.
5.4 Payment terms
Payment shall be made by credit card or if not possible by any other means BeezUP eventually offers.
Any sum that was not paid by the due date shall lead to the payment of liquidated damages computed on the basis of the legal interest rate multiplied by three, after a prior formal notice remained ineffective during 10 working days. These liquidated damages shall accrue from the due date of payment until the effective date of payment.
The Client shall be charged with all expenses related to the arrears recovery or management (including debit or cheques rejection fees). Pursuant Article D441-5 of the French Commercial Code, the Client will also be required to pay a lump sum of 40 euros to cover recovery costs. In accordance with the provisions of the French Commercial Code, in the event that the recovery costs incurred by BeezUp would exceed 40 euros, BeezUP reserves the right to claim additional compensation, upon justification.
Whatever the mode of payment the Client selected, BeezUP warrants the Website is secured in accordance with good practices in order to protect Clients’ banking data.
5.5 Clicks and orders tracking system
BeezUP makes available personalized follow-up tables to the Clients, in order for them to check the consistency of the tracking system with the amounts of the variable portions of the price for the Services.
These follow-up tables can be directly accessed online by the Client on its Account.
These tables are automatically generated by the clicks and orders counting system undertaken by BeezUP’s application. The Client accepts the use of this system and agrees not to contest the counting application’s workings (hereafter the “Tracker”). The number of clicks corresponds to the number of visits on the Client’s e-store website due to BeezUP’s services. Sales details correspond to those sales that were concluded or initiated on the Client’s e-store.
The Tracker consists in code lines to be inserted on the pages of the Clients website. This Tracker enables the Client to verify the consistency of the clicks counting with the billing of the variable part of the selected Service. It is expressly provided that all information collected by the Tracker is confidential and hosted in a secured database.
The Client may request the communication of the technical logs collected by the Tracker, provided it complies with a notice period of thirty (30) days, by sending a registered letter with receipt acknowledgement to BeezUP’s headquarters.
Any complaint regarding the counting shall be filed by the Client within a limit of 30 days from the date of issuance of the invoice for the relevant period.
The tracking system enables BeezUP to obtain general statistics related to Clients’ website traffic and to the turnover generated through referencing with channels. BeezUP reserves the rights to use and exploit such statistics under aggregated form by BeezUP for purpose of improvement of the Services, the constitution of reports, studies and presentations on any media.
In order to qualify for services requiring to track the orders placed on the Client’s website, the Client shall imperatively implement the Tracker on its website, as provided by BeezUP, under the conditions described in the document in Annex 2.
BeezUP cannot be held liable for the consequences of a bad implementation of the Tracker by the Client.
The Client warrants that the products’ information is accurate and relevant.
The client warrants the products file it transmits to BeezUP is devoid of any virus and cannot affect BeezUP’s application’s operation.
The Client warrants that its products’ description does not infringe any intellectual property rights belonging to third parties.
The Client warrants that it complies with existing regulations applicable to its field of activity, especially with respect to consuming law, notably articles L. 111-1 and following, L. 121-16 and following and L. 213-1 and following of the French consumer Code.
7. INTELLECTUAL PROPERTY
7.1 Services, Website and Interface ownership
BeezUP holds and retains every intellectual property rights related to Services.
All the data, texts, information, images, photographs or any content on the Website or the Interface is protected under intellectual property law. Therefore, the Client may use these elements only for strictly private purposes.
Except as provided here above, any reproduction, representation, use or adaptation, under any form whatsoever, of the Website’s or the Interface’s elements, in whole or in part, without BeezUP’s written consent, shall constitute a counterfeiting act punishable under the French intellectual property Code.
All trademarks, logos or other distinguishing features appearing on the Website or the Interface shall remain the exclusive property of BeezUP or channels or other partners. Therefore, any reproduction and / or representation, and any use of these distinguishing features are prohibited except when prior and written authorization was given by BeezUP or channels or partners.
7.2 Licence to use the Interface
BeezUP grants to the Client a non-exclusive, revocable, non-transferable licence for the use of the Interface with the sole purpose of the use of the selected Services by the Client, for the entire world and for the duration of its subscription.
7.3 Trade references
BeezUP may name the Client as a trade reference, in accordance with trading usage, and may use the Client’s trademarks and distinctive marks for the needs of the Services.
8. DATA PROTECTION
9.1 Liability of the Client
The Client shall be fully liable with respect to the accuracy, reliability, and compliance with the law of the description of products it transfers to BeezUP as part of the subscription to Services. In particular, it warrants the file’s content is lawful and does not infringe third parties’ rights. It undertakes to promptly and timely alert BeezUP and channels in case of an abnormality (entry error, non-compliance, etc.).
9.2 Liability if BeezUP
BeezUP shall not be subject to any obligation to achieve a given result as part of the Services it offers.
BeezUP shall strive to implement any means necessary in order to maintain the Service and the Interface provided to the Clients. The Parties agree that BeezUP may not be rendered liable when it is impossible for the Client to use the Interface’s features, especially during maintenance periods of the Interface, or periods during which product files are being updated and / or programs essential to the proper working of the offered Services are being improved or the scope of their features is being extended.
BeezUP shall never be rendered liable in case of a misuse of the Interface’s functionalities by the Client.
BeezUP shall never be held liable, under an action in contract or in tort or any other action, for any damage, be it direct or indirect, incidental or consequential, or of any nature whatsoever, or for any particular or incidental damage resulting from the use of the Services, especially with respect to data or profit loss.
In any event shall BeezUP be rendered liable for referencing services performance by channels (particularly regarding the late or incomplete upload of the Client’s products or the computer breakdown).
9.3 Channels’ liability
BeezUP is independent from all Channels and partners. The Client acknowledges that BeezUP is outside any contractual relationship between the Channels and the Clients. Contractual relationships between the Clients and the Channels shall be ruled exclusively under the terms and conditions imposed by those Channels and which acceptance by the Clients determines the access and the possibility to reference products on the said Channel.
10. RIGHT OF WITHDRAWAL
Pursuant to Article L. 121-16 of the French Consumer Code, the Client is informed that as he is acting as a professional merchant, he does not benefit of any right of withdrawal.
11. FORCE MAJEURE
Neither party may incur liability under the breach, delay or inability to perform its obligations if the failure, delay or prevention of performance results from a case of force majeure as defined under case law, subject to the notification by the party invoking the event to the other party within seven (7) days from the occurrence of this event.
The Client undertakes to ensure the confidentiality of all BeezUP’s information, documents and / or data received under this contract and which would not have fallen into the public domain.
This obligation of confidentiality shall apply throughout the entire term of this Contract and for five (5) years after its expiration.
BeezUP may transfer statistical information regarding the Client’s activity, which was collected in connection with the performance of the Services, to its partners. However, the Client may refuse such transfer by modifying its Account’s settings within its Interface.
13. APPLICABLE LAW
These Terms and Conditions for Sales shall be governed by French law. Any dispute arising out of or relating to this agreement shall be subject to the exclusive jurisdiction of the courts of Paris.