Updated : September 1st 2022, version 3
The purpose of Agreement is to define the conditions under which the Supplier makes the Services available to a Client, which shall enable the latter to do as follows:
Manage the product purchases and digital subscriptions, made via its Applications;
Analyze the sales figures for its products and digital subscriptions made via its Applications;
- Optimize its product sales and digital subscriptions via its Applications through marketing tools integrated to the Services, intended to increase the revenue generated.
The subscription to the services proposed by the Supplier implies the Client’s acceptance without any restriction or reserves to these Terms of service. These Terms of service are part of the Agreement, which shall be signed between the Client and the Supplier.
Article 1. DEFINITIONS
The terms beginning in the upper case in the Agreement (including the preliminary remarks herein), whether they are used in the singular or the plural, shall have the following meaning.
- Purchasely’s Data Processing shall mean the document, with the purpose of defining the conditions and terms of enforcement of the Personal Data processing operations made in the context hereof;
- Subscriber shall mean a User with an active digital subscription or having made a purchase upon use of a digital product during the accounting period (during the past month) via a Client Application based;
Monthly Active Subscriber shall mean unique User that matches one of the following conditions:
- has an active subscription (including free trials) entitling him with an access for at least one day during the month;
- has performed at least one one-time purchase (consumable or non-consumable products) in that month;
- any offer giving more than one access to its Users, either directly through the offer or using Family Sharing, will count as 1 Monthly Active Subscription only.
- Application shall mean any application edited by a Client, accessible from any terminal on which the Services are accessible (the list being specified on the Purchasely Website), and enabling a Subscriber to purchase products and/or services;
- Associate shall mean the person placed under the Client’s responsibility (subordinate, employee, representative, etc.) and benefiting from an access to the application Services on his computer by virtue of the user license contracted by the Client;
- Client shall mean any individual or legal entity subscribing to the Services for exclusively professional purposes;
- Contractual Undertaking shall mean this contractual document;
- Agreement shall mean this Contractual Undertaking and the Purchasely’s Data Processing Agreement;
- Data shall mean the information, publications and, generally, the data from the Client’s database, including the Personal Data, the use of which is subject hereof, and the purchases or subscriptions subscribed by the Users;
- Personal Data shall mean personal data within the meaning of the Personal Data Regulations;
- Supplier shall mean PURCHASELY, a simplified joint-stock company, with a share capital of 50,056.00 €, with its registered office located at 59 Promenade du verger, 92130 Issy-les-Moulineaux, registered with the Nanterre Registry of Trade and Companies under the number 890 405 921, represented by Mr. Nicolas Tissier, acting and with the necessary authorization as CEO;
- Identifiers shall mean both the Associate’s individual identifier (“login”) and the connection password (“password”), communicated after the registration on the application based Services;
- Internet shall mean all the interconnected networks, which are located across all the regions globally;
- Partner shall mean the Client and/or Supplier’s external companies proposing technical solutions on which the Services are based in order to function;
- Partie(s) shall mean, individually or collectively, the Supplier and/or the Client;
- Purchasely ISSMP shall mean the documentation, defines the organizational and technical security rules setup by the Supplier. This documentation may be modified at any time (without substantively calling into question the level of security), without notice, by the Supplier depending, in particular, on the Service developments. The duly modified documentation shall automatically apply upon notification sent by the Supplier to the Client
- Personal Data Regulations shall mean the Law no. 78-17 dated January 6, 1978 relating to I.T., files and liberties (Data Protection Act) and the General Data Protection Regulations (called “GDPR”) dated April 27, 2016 published in the Official Journal of the European Union on May 4, 2016 relating to the protection of individuals with regard to personal data processing and the free movement of this data, and any regulations which shall apply for personal data protection, in particular the EC Directive 2002/58 by the European Parliament and Council dated July 12, 2002 concerning the processing of personal data and privacy protection in the electronic communications sector (referred to as the “Privacy and electronic communications directive” or “E-privacy directive”) and any new regulation which shall replace such Directive.
- (Application) Service(s) shall mean the service(s) provided by the Supplier.
- App sessions are counted through the Purchasely SDK initializations.
- User shall mean a person who uses a Client Application.
- App session shall mean an initialization of the Application and the Purchasely SDK following an opening of the Application after its installation or after it has been killed either by the Operating System of the Device or by the User themselves. App sessions are counted through the Purchasely SDK initializations.
Article 2. PURPOSE
The purpose of the Agreement is to define the terms and conditions applicable to the Application based Services subscribed by the Client from the Supplier.
The Supplier grants to the Client, who accepts:
- a right of access to the Supplier’s servers in the conditions defined hereafter;
- a final right of use of the Services;
- a set of services defined hereafter, in particular data hosting, application based Services maintenance, technical assistance.
Article 3. DESCRIPTION OF THE APPLICATION SERVICES
1. APPLICAL SOLUTIONS
The Supplier shall make available the Services for the Client, accessible on a server administered by the Supplier via the Internet network.
Under the conditions of Article 6 “License”, the Supplier shall consent the Client the non-exclusive right to use the Services.
The Supplier shall ensure the Data hosting, maintenance and security of the Services.
The Supplier shall not be held liable for any inconveniences or damages related to the use of the Internet network, in particular, due to service interruption, an external intrusion or the presence of an I.T. virus. The Supplier also draws the Client’s attention to the importance of the Internet network quality for the User’s connection to purchase a product or digital subscription.
3. ACCESS TO THE SERVICES
The Client shall be the sole user of this right of access. He may connect at any time — with the exception of the maintenance periods, under the conditions defined in Article 7 hereafter —, i.e.:
- 24 hours/24,
- 7 days/7,
- Including Sundays and public holidays
The access shall be made:
- By the Client’s Associates from any digital terminal connected to the Internet, with a sufficiently recent Internet browser.
- Via Identifiers provided to the Client, with the Client being solely responsible for the integrity of the terminals used for the connection.
The Client’s identification upon his access to the application Services shall be made as follows:
- by an Identifier attributed by the Supplier,
- and a password communicated to the Client by the Supplier.
The Client shall use the Identifiers communicated upon each connection to the application Services.
The Identifiers are intended to reserve the access to the Services subject hereof to the Client’s Associates, protect the integrity and availability of the Services, and the integrity, availability and confidentiality of the Client’s Data, such as transferred by the Users.
The Identifiers are personal and confidential. They may only be changed upon the Client’s request or at the Supplier’s initiative, subject to first informing the Client. The Client shall undertake to make his best endeavors to ensure the confidentiality of his Identifiers and not to disclose them by any means whatsoever.
The Client is fully responsible for the use of the Identifiers and ensuring the confidentiality of his access codes. The Client must modify the password upon his first connection and ensure that it is changed regularly in order to limit the risk of Identifier recuperation. He shall be responsible for choosing a sufficiently reliable password and must ensure that the latter is sufficiently secure (upper case, lower case, special characters and longer than 8 characters).
He shall ensure that no other person unauthorized by the Supplier has access to the application Services. Generally, the Client shall be responsible for the security of the individual workstations for Service access. In the event whereby he would have been informed of access by an unauthorized user, the Client shall immediately inform the Supplier and provide confirmation in any written format.
In the event of loss or theft of one of the Identifiers, the Client shall use the procedure setup by the Supplier enabling the recuperation of his Identifiers by email.
The Client is solely liable for the content and messages disseminated and/or downloaded via the application Services.
Article 4. TECHNICAL DESCRIPTION OF THE PURCHASELY SERVICES
The application solution setup by the Supplier integrates 3 components:
- The SDKs
- The configuration Console
- The Purchasely Platform
1. SDKs (Software Development Kit)
The iOS and Android SDK are development kits integrated directly in the Applications. They enable the administration of the subscription and assure the display view (or paywall) of the products and subscriptions available for sale.
- presentation of the products or subscriptions proposed for sale or subscription;
- purchase of a product or subscription with the App Store, Play Store or Huawei AppGallery;
- restoration of the previous purchases made on the aforementioned stores;
- tracking of the principal business events (access to a paywall, subscription request, validation of a subscription, restoration of a subscription) made in the SDK and related to the Application;
- collection of the Subscriber’s reasons for termination.
2. Purchasely Console
The Purchasely Console is a Back Office Web interface. It is made available to the Client to set, administer and supervise its product sales and digital subscriptions.
- configuration of the product catalogue proposed upon the subscription;
- configuration of the different presentations related to each subscription and pre-visualization of the end result. It is possible to conduct as many presentations at the Client’s discretion;
- access to the Subscribers’ life cycle monitoring tools
- access to the “business” follow-up dashboards enabling the visualization of the principle data and statistics relating to Subscribers (number of active subscribers, division per platform, per type of subscription).
3. Purchasely Cloud Platform
The Purchasely Cloud Platform is connected with the mobile SDKs and the mobile application stores. It is responsible for validating the receipts issued by the mobile application stores upon the purchase of a digital product or a digital subscription, and to notify in real time the Client’s back-end of events associated with the Subscribers’ life cycle (activation, renewal, termination), via a Webhook. Through these real time notifications, the Client’s back-end may open or close the Subscribers’ access.
- secured validation of receipts issued from the App Store (iOS) and Google Play Store (Android);
- storage of receipts on the platform,
- real-time update of the subscriber’s status for each Subscriber (via a Webhook).
Article 5. APPLICATION QUALITY
The Supplier shall ensure an availability of the application Services at an average of 99.6% for the year.
The Services are based on several technical components provided by several Partners:
- AWS for hosting Services (servers hosted in the European Union)
Payment partners (non-exhaustive list):
- Apple for the purchases and subscriptions on the App Store
- Google for the purchases and subscriptions on the Play Store
- Huawei for the purchases and subscriptions on the Huawei AppGallery
- Amazon for the purchases and subscriptions on the Amazon App Store
The Supplier draws the Client’s attention to the fact that the availability of these Services is directly related to that of the technical components used at its Partners. Under no circumstances may the Supplier be held liable for the unavailability of the Services due to the unavailability of the technical components used at its Partners.
The Supplier shall undertake to set up effective controls to reasonably assure that the Client may access and use the relevant Services at the duly stipulated time periods.
The application Services may occasionally be suspended due to maintenance interventions necessary for the functioning of the Supplier’s servers or platform. In the event of an interruption of the application Services for maintenance, the Supplier shall undertake to respect the operations procedure stipulated in Article 7 — Maintenance of the General Conditions, in order for the Client to be duly informed of the interruption, to enable the latter to take timely measures to avoid any disturbance to his activity.
The Supplier shall not be held liable for any impact of such unavailability on the Client’s activities.
Article 6. LICENSE
The Supplier shall grant the Client a personal, non-exclusive, non-assignable and non-transferable right of use of the application Services, for the entire term of the Agreement and globally.
The Client may only use the application Services in accordance with his requirements and their documentation. In particular, the license relating to the application Services shall only be granted for the sole and unique purpose of enabling the Client to use the Services, at the exclusion of any other purpose.
The right of use shall include the right to represent and implement the application Services in accordance with their intended purpose, in the SaaS mode, via a connection to an electronic communications network. The Client may, under no circumstances, make the Services available to a third party, and shall duly undertake to prohibit any other use, in particular, any adaptation, modification, translation, arrangement, diffusion, decompilation, without this list being exhaustive.
Article 7. MAINTENANCE
The Supplier shall assume the corrective and evolutive maintenance of the Services.
Concerning the corrective maintenance:
Any anomaly reports must be confirmed directly through the chat mode integrated to the Services. The Supplier shall make its best endeavors to respond to the Client and proceed with the diagnostic of the anomaly and implement the necessary correction.
In any event, the Supplier shall guarantee the Client an access to the Services 24h/24, within the threshold of Article 5, Application Quality, notwithstanding any support service pending and/or unavailability period of the support.
The Supplier is not responsible for the corrective maintenance in the following cases:
- the Client’s refusal to cooperate with the Supplier in the resolution of the anomalies and, in particular to respond to the questions and information requests;
- use of the application Services in a means that is not compliant with their intended use or documentation;
- unauthorized modification of the Services by the Client or by a third party;
- the Client’s non-compliance with his obligations under the Agreement;
- implantation of any software packages, software or exploitation system that are incompatible with the application Services;
- default of the electronic communication networks;
- voluntary act of deterioration, malevolence or vandalism;
- deterioration due to a force majeure event or an improper use of the application Services.
Concerning the evolutive maintenance:
The Supplier shall carry out work to ensure continuous improvements of the Services. The Client shall benefit from the updates and the functional developments of the application Services.
The Supplier shall undertake to transfer the updated documentation for the new versions of the Services.
The corrections and evolutions of the application Services are expressly subject to the Agreement.
The interventions relating to this service may render the service temporarily unavailable. They are carried out regularly after a notification period of one (1) week and only outside of business hours. The Supplier guarantees that the updates and new versions of the Services shall not give rise to any regression of the application Services in terms of performance and functionalities.
Article 8. DATA PROCESSING
1. PERSONAL DATA
If the Data transferred for the use of the application Services includes Personal Data, the Client confirms that he has carried out all the obligations necessary under the Personal Data Protection Regulations, and that he informed the relevant individual of the use made of such Personal Data. In this regard, the Client shall be responsible for any remedy, complaint or claim resulting from an individual, whose Personal Data would be reproduced and hosted via the application Services .
The Supplier shall confirm that he carries out all the obligations necessary under the Personal Data Protection Regulations. In this regard, the Supplier shall be responsible for any remedy, complaint or claim resulting from an individual, whose Personal Data would be reproduced and hosted via the application Services .
2. DATA EXPLOITATION
The Client ensures any editorial responsibility for the use of the application Services.
The Client is solely responsible for the quality, legality and relevance of the Data and content that he transfers for the use of the application Services. He also guarantees that he is the holder of the intellectual property rights enabling him to use the Data and content. Accordingly, the Supplier shall not be liable in the event of non-compliance of the Data and/or content with the laws and regulations, public policy or the Client’s requirements.
The Client remains the sole owner of the Data and content of any kind whatsoever constituting the Service content.
3. DATA SECURITY
Each of the Parties shall undertake to implement the appropriate technical resources to ensure the Data security.
Subject to Article 11 “Liability - Force majeure”, the Supplier shall undertake to protect the integrity and confidentiality of the Data included in the Services. The Supplier shall setup the technical and organizational measures to prevent any access or fraudulent use of the Data and prevent any losses, alterations and destruction of Data.
4. PERSONAL DATA PROTECTION
The Parties acknowledge that they are fully aware of the obligations of the Personal Data Regulations which apply to them in their respective capacity as “data controller” or “sub-contractor” as defined in the Personal Data processing carried out.
In this regard, the Parties shall undertake to respect the terms of the Purchasely Data Processing Agreement, which is an integral part of the Agreement, and the purpose of which is to define the conditions and enforcement methods for the Personal Data processing operations carried out in the context hereof.
Article 9. OWNERSHIP
The Client is and shall remain the owner of all the Data that he uses via the application Services in the context of the Agreement.
The Supplier is and shall remain the owner of the ownership rights relating to any element of the application Services made available to the Client, and, more generally, the I.T. infrastructure (software and material) setup or developed in the context of the Agreement.
The Agreement does not confer the Client any right of ownership on the Services. The temporary availability of the Services under the conditions provided herein shall not be analyzed as the assignment of any intellectual property right for the Client’s benefit, within the meaning of the French Intellectual Property Code.
Accordingly, the Client shall undertake not to reproduce any element of the Services, or any documentation in his regard, by any means whatsoever, in any form or on any support whatsoever.
The Client may not assign all or part of the rights and obligations resulting herefrom, whether in the context of a temporary assignment, sub-license or any other Agreement providing for the transfer of such rights and obligations.
Article 10. PEACEFUL POSSESSION GUARANTEE
The Supplier represents and warrants:
- that the Services he has developed are originals within the meaning of the French Intellectual Property Code,
- that he is the owner of all the intellectual property rights enabling him to enter into the Agreement.
The Supplier represents and warrants that the Services are not likely to breach third party rights.
Article 11. LIABILITY - FORCE MAJEURE
Each of the Parties shall assume the liability for the consequences resulting from his faults, errors or omissions, and any faults, errors or omissions by any of his subcontractors and causing direct damage to the other Party.
Furthermore, and in the event of fault proven by a Party, the other Party shall only assume the pecuniary consequences of the direct damages that are foreseeable. Accordingly, a Party may under no circumstance be held liable for the other Party’s indirect or unforeseeable losses or damages or those of third parties, which includes, in particular, any loss of earnings, loss, inaccuracy or corruption of files or Data, a commercial prejudice, loss of turnover or profits, loss of clientele, loss of opportunity, cost of obtaining a substitute product, service or technology, in relation or resulting from the non-performance or an erroneous performance of the services.
In all cases, the amount of a Party’s liability shall be strictly limited to amounts actually paid by the Client during the 12 months preceding the date of occurrence of the operative event of liability.
Furthermore, the Supplier shall also not be held liable for the accidental destruction of the Data by the Client or a third party who has accessed the application Services via Identifiers issued to the Client except in the event where the identifiers would be directly obtained from the Supplier (e.g: by an attacked gaining access to the Supplier's system).
None of the Parties shall be held liable for any default in its obligations in the context hereof, if such default results from: a Governmental decision, including any withdrawal or suspension of any authorizations, a total or partial strike, internal or external to the company, fire, natural disaster, war, a total or partial interruption or a blockage of the telecommunications or electricity networks, computer hacking or more generally, any other force majeure event presenting the characteristics defined by case law.
The Party acknowledging the event shall inform the other Party immediately of his impossibility to perform his contractual obligation(s). The suspension of obligations or delay shall under no circumstances be considered as a ground of liability for the non-performance of such obligation or result in the payment of damages or late payment penalties.
Notwithstanding the above, Supplier shall indemnify Client for the amount of administrative fines finally imposed against Client by a data protection authority which are a result of Supplier’s breach of Personal Data Regulation. The indemnity shall be capped to a maximum amount equal to three (3) months of Purchasely fees. Furthermore, to the extent commercially reasonable, each Party shall assist the other Party and its affiliates in demonstrating their compliance with any legislative or regulatory responsibilities or liabilities under any relevant Personal Data Regulation.
Article 12. INSURANCE
The Supplier shall undertake to subscribe to the necessary insurance policies in order to cover the risks related to the exercise of his activity. The Supplier shall undertake to provide any justification to the Client if the latter expressly requests.
Article 13. TERMINATION
In the event whereby a Party fails to comply with its contractual obligations, the Agreement may be terminated by the the other Party thirty (30) days after sending a formal notice letter by email, which has remained without response. The formal notice shall mention the acknowledged default(s), and notwithstanding the possibility for the Party to proceed with the suspension of the payment or Services as from the acknowledgment of the default.
In the event of termination, the Client shall cease all use of the access codes to the application Services.
The reversibility services shall be implemented in accordance with Article 14.
Article 14. REVERSIBILITY
In the event of cessation of the contractual relation, regardless of the cause, the Supplier shall undertake to gratuitously return or destroy all of the Client’s Data, at the latter’s discretion, at the latter’s first request by a formal notice letter sent by email at the following address firstname.lastname@example.org and within a period of thirty (30) days on the date of receipt of this claim, in a standard easily legible format in an equivalent environment.
The Client shall actively cooperate with the Supplier in order to facilitate the Data recuperation.
Article 15. CONFIDENTIALITY
Each of the Parties shall undertake (i) to ensure the confidentiality of all the information that it receives from the other Party, and, in particular (ii) not to disclose confidential information to the other Party, any third party, other than the employees or agents required to be informed thereof; and (iii) only to use the other Party’s confidential information to exercise his rights and meet his obligations stipulated herein.
Notwithstanding the foregoing, none of the Parties shall have any obligation with regard to information which (i) would have fallen or were to fall into the public domain, not due to the any fault by the recipient Party, (ii) would have been independently developed by the recipient Party, (iii) would have already been known to the recipient Party prior to its disclosure by the issuing Party, (iv) would have been legitimately received by a third party not subject to a confidentiality obligation or (v) should be disclosed by virtue of a law or court order (in such case, it should only be disclosed for the required purpose and after informing the issuing Party in writing).
The Parties’ obligations with regard to the confidential information Parties shall remain applicable during the entire term of the Agreement and thereafter, insofar as such information remained confidential for the issuing Party and, in any event, for a period of two (2) years after the expiry of the Agreement. Each Party must return all the copies of documents and supports including the other Party’s confidential information, as from the end of the Agreement, regardless of the cause. Furthermore, the Parties undertook to ensure the respect of these provisions by their personnel and any subordinate or third party who may be involved, under any capacity whatsoever, in the context of the Agreement.
Article 16. RIGHT OF COMMUNICATION
The Client shall grant the Supplier the right to communicate succinctly on the project during the term of the Agreement, upon mutual written agreement.
The communications concern exclusively:
- the possibility for the Supplier to reference the Client’s Applications, using the Services as clients on its Website and LinkedIn page.
- the possibility to integrate the Applications icon and a screen shot of the latter on a Website
- the possibility to associate this image to a client testimonial (which shall be subject to the Client’s prior validation), certifying the facility to integrate the solution, the resulting time gained, and the strategies deployed to increase the income resulting from product purchases or digital subscriptions.
- the possibility to draft a Success Story on the means by which the Client integrated the solution, which may be downloaded in PDF format on the Supplier’s Website or on his LinkedIn page.