General Terms of Sale

This English version is provided for convenience. In the event of any discrepancy, the French version of the General Terms of Sale prevails.

1. Presentation of FunBIM and the Application

FUNBIM is a company specialised in software development.

It designed and developed a mobile construction site tracking application. This Application runs in SaaS Mode and can be used on smartphones, tablets and web portals. It lets Users import their drawings and/or photographs and work directly on them by adding their observations, progress tracking, forms, and so on.
This Application was specifically designed by construction professionals to suit the needs and constraints of construction professionals.

It is nevertheless specified that this Application is a generic application, designed to meet the ordinary needs of its users. It is not a bespoke application tailored to the specific needs of any particular entity. Using the FUNBIM Application therefore requires, by definition, configuration and adaptation by the Client, of which the Client is fully aware.
The Client is a natural or legal person acting in a professional capacity in the field of building construction.

The Client acknowledges having read the description of the Application (appendix 1) and the associated Documentation (appendix 2) prior to entering into this Agreement. The Client accordingly acknowledges having been fully informed of the characteristics of the Application, its features and its conditions of use.

The Client thus acknowledges having had all the information it needed, in particular to identify the technical constraints linked to the use of the Application and to determine on its own whether the Application suits its needs.

2. DEFINITIONS

For the purposes hereof, the following terms, when capitalised, whether in the singular or the plural, shall have the following respective meanings:

Defect: means a malfunction of the Application, reproducible by FUNBIM, preventing its use in accordance with the Documentation.
Blocking Defect: means an urgent reproducible fault affecting the core of the system, which makes it impossible to use or to continue using one or more features of the Application. Essential functions are no longer operational.
Major Defect: means a reproducible fault affecting the system, which makes it difficult to use or to continue using one or more features of the Application. The Application runs at limited capacity or is unstable due to regular interruptions. Essential functions are not affected, but system interruptions occur.

Minor Defect: means a limited reproducible fault, or a fault inherent to the Documentation associated with the Application, which is not critical in the sense that no data loss that could not be circumvented or avoided by a workaround is incurred. The system runs normally.
Application: means the construction site tracking application developed by FUNBIM, described in appendix 1, the right to use which is granted to the Client.

Agreement: means the whole formed by these General Terms, the Special Terms, the appendices and any subsequent amendments.
Documentation: means the document attached as appendix 2 describing the features and the instructions for use of the Application. Any other documentation is excluded from the scope of this Agreement, in particular commercial documentation. The Documentation is provided to Users, when the Application is made available, in electronic form, within the User interface.
Data: means the data and information, whatever their form (text, photos, videos, illustrations, etc.) and whatever their content, uploaded to or stored in the Application by the Client.

SaaS Mode: means the mode of use of the Application in which the Application is installed on remote servers rather than on the User’s machine.

Application Service: means the service offered in SaaS Mode by FUNBIM allowing the Client to use the Application.
Services: means, generally, the services provided by FUNBIM to the Client, including in particular the Application Service.

Users: means the persons, internal or, where provided for, external, authorised to use the Application. The number of Users is set out in the Special Terms.

3. PURPOSE

The purpose of these General Terms is to define the terms and conditions applicable to the Services ordered by the Client from FUNBIM.

Accordingly, the Client acknowledges having read these General Terms, accepts them in full, without restriction or reservation, and waives the right to rely, where applicable, on its own purchasing terms or any other contractual document.

These General Terms cancel and replace any previous general terms and may be amended without notice at FUNBIM’s initiative. The General Terms in force are available at any time on FUNBIM’s website at www.funbim.com.

The Client undertakes to comply with all obligations arising from this Agreement and guarantees that the Users will comply with these obligations.

4. Description of the Services

Under the Agreement, FUNBIM shall provide the Client, who accepts, with the following Services:

A FREE TRIAL allowing the Client to use the Application for a period of 2 weeks and within a limit of 50 MB of storage.

A free START plan giving read access to projects and restricted write access (the User may only write text comments inside an observation and a form).

A paid 2D and 3D subscription allowing the Client to use the Application Service, which covers: a right of remote access to the Application, a right to use the Application, hosting of the Client’s Data in the Application and the associated maintenance. Paid plans include free form conversion (2 forms converted free of charge per paid licence).

The option to order additional services, which covers in particular training services at the Client’s request.

5. IT environment

Before subscribing, the Client undertakes to check that its IT environment complies with and is suited to the technical prerequisites described in the Documentation, in order to ensure that its system and hardware are capable of running the Application.

The Client then undertakes to use the Application only in an IT and hardware environment that complies with the technical prerequisites contained in the Documentation, for the whole duration of the Agreement.

The Client is hereby informed that the prerequisites may change, in particular for technical reasons. Should a change occur during the performance of the Agreement, the Client would be informed within a reasonable time.

6. Configuration

The Client is advised that the Application is a standard application which therefore needs to be configured in order to be adapted to the needs of the Client and the Users.

Configuration of the Application is carried out by the Client or by any service provider appointed by the Client with the necessary skills. Configuration is carried out under the sole responsibility of the Client. The quality of use of the Application depends on the quality of its configuration.

If the Client so wishes, FUNBIM may nevertheless assist with configuration as part of the paid training services offered (see article 12-2 below). In that case, FUNBIM will assist the Client in carrying out configuration operations on the basis of the information provided by the Client. Checking that information is not part of FUNBIM’s remit.

7. Access to the Application

7-1- Access codes:

To allow the Client to access the Application, FUNBIM will send the Client an e-mail containing a login and a password allowing the Client to create its personal space and access the Application. A code will be provided for each User.

The logins and passwords created are personal, confidential and non-transferable. They are reserved exclusively for the Client’s use. They may not, in any way whatsoever, be disclosed to third parties or reused by anyone other than the Users. Any loss, theft or forgotten password must be reported to FUNBIM within 24 hours.
The Client is solely responsible for the connection, and its consequences, of the Users to whom it grants access to the Application. In this respect, the Client indemnifies FUNBIM against any damage that may be caused to it by abnormal or non-compliant use.

7-2- Users:
Access to the Application is granted for the number of Users set out in the Special Terms.

Users must be identified beforehand by the Client to FUNBIM. The Client undertakes to inform FUNBIM of any change of User throughout the duration of the Agreement.

As a reminder, a paid licence is tied to one e-mail address and limited to one web version, one tablet and one smartphone.

If the Client wishes to use the Application for a higher number of Users than when it subscribed, it must first subscribe to an extension of the Agreement to the desired number of Users and pay the corresponding price.

The number of Users cannot be reduced during a subscription period.

7-3- Availability of the Application:
FUNBIM will endeavour to ensure that the Application is accessible 24 hours a day, 7 days a week. It is nevertheless specified that the Application is hosted by a third party, not by FUNBIM.
Access to the Application will be deemed unavailable when one or more network components essential to the operation of the Client’s server suffer a failure causing total unavailability of the Client’s server.
Access to the Application may be temporarily suspended by FUNBIM, in particular to carry out maintenance operations or updates. FUNBIM will do its best to ensure that such suspensions take place outside working days and outside the hours of 9:00 am to 6:00 pm.
In cases of absolute necessity, such as the appearance of a malfunction likely to prevent use of the Application, FUNBIM nevertheless reserves the right to interrupt access to the Application immediately and without notice.

8. Conditions of use of the Application

The Agreement allows the Client to use the Application in accordance with its intended purpose and for its own needs, through a remote connection and for the number of Users defined in the Special Terms. To this end, the Client may access a dedicated personal space on a multi-user platform made available by FUNBIM and hosted remotely.

The Client undertakes to use the Application under the conditions set out herein and in accordance with the instructions for use contained in the Documentation.

Any use in breach of these terms will entitle FUNBIM to stop making the Application available and to suspend access to the Application, without prejudice to FUNBIM’s right, at its sole discretion, to terminate the Agreement itself.

Under no circumstances shall the Client have access, or any right of access, to the source code of the Application.

9. Licence

Under this Agreement, FUNBIM grants the Client, who accepts, a non-exclusive and non-transferable right to use the Application, for the duration provided in the “Duration” article, worldwide, and under the conditions of the subscription plan selected by the Client in the Special Terms.

The right of use means the right to display and run the Application, in accordance with its intended purpose, in SaaS Mode via a remote connection.

The licence to the Application is granted to the Client for the sole purpose of allowing the Client to use the Application and, more generally, the Application Service, for its own needs only, in the course of its business, to the exclusion of any other purpose.

This licence is granted to the Client personally and may not be assigned or transferred to a third party for any reason whatsoever (one licence corresponds to one e-mail address and is limited to use of the web version, 1 tablet access and 1 smartphone access).

The Client shall not grant, even free of charge, any right of use or right of access to the Application or the Application Service to third parties, in any manner or form whatsoever, without FUNBIM’s prior written consent. The Client shall also not distribute, disseminate or market the Application, whether for a fee or free of charge, or use it to provide services or training to third parties.

More generally, the Client shall refrain from any type of use not expressly authorised by this Agreement, including, without limitation, any adaptation, correction, modification, translation, arrangement, distribution, disassembly or decompilation of the Application, in whole or in part.

Should the Client wish to make the Application interoperable, it must first contact FUNBIM to carry out any adaptations and/or obtain the information strictly necessary for such interoperability, before any intervention by the Client on the Application. The services provided in this context, including the provision of information, will be invoiced in addition to the subscription price, on the basis of a quote from FUNBIM.

10. Duration

Each subscription to the Application Service is granted for a fixed term of one year.

It will then be tacitly renewed from year to year, unless terminated by registered letter with acknowledgement of receipt sent by either party at least three months before each renewal date.

11. Maintenance

11-1 – Corrective maintenance:
FUNBIM provides corrective maintenance of the Application for the whole duration of the subscription. Maintenance is included in the subscription price.

This maintenance consists of correcting a Defect so as to allow the Application to be used as provided in the Documentation. Corrective maintenance is not intended to assist the Client or the Users in using the Application.

Corrective maintenance will be carried out as follows:

Blocking Defects: delivery of a corrective patch or a workaround within 48 working hours of FUNBIM receiving the maintenance request.

Major Defects: delivery of a corrective patch or a workaround within 7 working days of FUNBIM receiving the maintenance request.

Minor Defects: Minor Defects are not necessarily corrected and are corrected as part of the evolution of the Application as decided by FUNBIM.
The parties will jointly, in good faith and reasonably, determine the level of Defect among the levels above, according to the event, problem, error or situation encountered.

The procedure for corrective maintenance services is as follows:

Before contacting FUNBIM for maintenance, the Client must:

Make sure that its hardware and software environment is working and be able to prove it. To this end, the Client must carry out the preliminary checks recommended in the Documentation.

Refer to the Application Documentation made available to it.

Consult the support platform provided by FUNBIM and directly accessible within the Application.

If the Defect persists, the Client may request FUNBIM’s intervention, provided that the support request contains all the documented elements needed to diagnose the Defect. The Client must remain available to FUNBIM for the diagnosis of the Defect.

FUNBIM will not assist the Client if the preliminary diagnosis procedure described above has not been carried out.
Support requests are sent exclusively by e-mail to FUNBIM’s technical support at the following address: support@funbim.com. Technical support opening hours are as follows: Monday to Friday, working days, from 9 am to 6 pm.

It is specified that it is the Client’s responsibility, before any request for and any intervention by FUNBIM in respect of maintenance, to make a copy of its documents, files and media. More generally, the Client must take all measures to protect its files, documents or any other items that could potentially be altered as a result of maintenance.

11.2. Evolutionary maintenance:

Evolutions, updates and new versions of the Application are developed at FUNBIM’s sole discretion, with no obligation whatsoever as to content, timing or frequency.
In any event, the Client is advised that, as an Application usable in SaaS mode, it is, by its nature, in constant evolution.

12. Training

12-1- FUNBIM offers the Client various training tools, in particular usage videos (tutorials), which the Client may use free of charge, on its own, independently.

12-2- The Client may also order training services in the use of the Application from FUNBIM. Such training will be delivered by FUNBIM subject to availability and is chargeable. Training rates are detailed in appendix 3. Any travel and accommodation costs incurred by the trainers will be borne by the Client.

13. Information – Cooperation

The Client undertakes to provide FUNBIM with all the information required to perform the Agreement. The Client undertakes to cooperate with FUNBIM by making available any document or information that FUNBIM may request.

The Client undertakes to inform FUNBIM of any change in its situation (in particular a change of address, e-mail or otherwise, a change of equipment, etc.) no later than one week after such change, except for a change of e-mail address, which must be notified within 48 hours of the new address coming into use. Failing this, FUNBIM would no longer be able to fulfil its obligations under this Agreement.

14. Data

14-1. Preservation of data

Because the Application runs in SaaS Mode, the Client’s Data is stored on the servers of FUNBIM or of the hosting provider appointed by FUNBIM.

The Data processed by the Application is under the sole responsibility of the Client.

It is the Client’s responsibility to take all appropriate measures to ensure the confidentiality, security and durability of this data. The Client therefore undertakes to make regular backups of its data in order to prevent any risk of damage or loss in the event of a malfunction of the Application.
Should the Client stop using the Application, it alone shall transfer the data from the Application to the new system. Should it require FUNBIM’s assistance, that intervention will be invoiced.

14-2. Personal data

The Data that the Client may import into or store in the Application may contain personal data, in particular the surnames, first names, e-mail addresses and telephone numbers of Users and, where applicable, information on Users’ performance.

Any processing of such personal data is subject to the provisions below.

14-2-1. Data controller:

The Client, as administrator of the space reserved for it within the Application, is the controller of this personal data within the meaning of the French Data Protection Act of 6 January 1978 and European Regulation 2016/679 of 27 April 2016, known as the “General Data Protection Regulation” or “GDPR”, applicable from 25 May 2018.

The Client accordingly warrants to FUNBIM that it has fulfilled all the obligations incumbent upon it under the aforementioned provisions, and in particular that it has informed the natural persons concerned of the use made of their personal data, that it has obtained their consent and that it has informed them of their rights.

It is indeed the Client’s responsibility to inform the persons concerned by the processing operations at the time the data is collected.

In this respect, the Client indemnifies FUNBIM against any action, complaint or claim from a natural person whose personal data is reproduced or processed via the Application.

14-2-2. Processing of personal data entrusted to FUNBIM:

In performing the Agreement and providing the Application Service, FUNBIM will host the Data, including the personal data, imported into the Application by the Client.

In this context, the Client is fully aware that, even though FUNBIM does not intend to process this data, it will necessarily have access to it because of the technical nature of its involvement.

The Client therefore expressly authorises FUNBIM to process the personal data included in the Data in order to provide this hosting service.

In this context:

The nature of the operations carried out on the personal data is: a hosting service.
The purpose(s) of the processing are: hosting the personal data and the space dedicated to the Client in the Application in order to allow the Client to use the Application in accordance with its intended purpose and to access the personal data it has imported.
The personal data processed is: the personal data included in the Data and imported by the Client into the space reserved for it in the Application.
The categories of data subjects are: the representatives of the Client’s customers, partners, suppliers or subcontractors, and the Client’s employees.

FUNBIM undertakes to:
Process the personal data solely for the hosting purposes set out above.
Process the personal data in accordance with the hosting conditions provided herein, which are deemed to constitute the Client’s instructions for the processing of this personal data.
Guarantee the confidentiality and security of the personal data.
Ensure that the persons authorised to process the personal data under this Agreement undertake to respect confidentiality or are subject to an appropriate legal obligation of confidentiality, and receive the necessary training in personal data protection.
Take into account, in the performance of the Services, the principles of data protection by design and by default.

14-2-3. Sub-processing:

It is further recalled, and the Client expressly consents, that hosting will be provided by a third party.

Should other hosting sub-processors subsequently be engaged, FUNBIM must inform the Client beforehand.

The third-party host is bound to comply with the obligations of this Agreement on behalf of and in accordance with the instructions of the Client. It is FUNBIM’s responsibility to ensure that the third-party host provides the same sufficient guarantees as to the implementation of appropriate technical and organisational measures so that the processing meets the requirements of the GDPR. If the third-party host fails to fulfil its data protection obligations, FUNBIM remains fully liable to the Client for the performance of the third-party host’s obligations.

14-2-4. Exercise of data subjects’ rights:

Insofar as possible, FUNBIM must assist the Client in fulfilling its obligation to respond to requests from data subjects to exercise their rights: right of access, rectification, erasure and objection, right to restriction of processing, right to data portability, right not to be subject to an automated individual decision (including profiling).

When data subjects send FUNBIM requests to exercise their rights, FUNBIM must forward these requests to the Client by e-mail upon receipt.

14-2-5. Notification of personal data breaches:

FUNBIM shall notify the Client of any personal data breach by e-mail within a maximum of 72 hours of becoming aware of it. This notification shall be accompanied by any useful documentation to allow the Client, if necessary, to notify the breach to the competent supervisory authority.

14-2-6. FUNBIM’s assistance with the Client’s compliance:

FUNBIM shall assist the Client, where necessary, in carrying out data protection impact assessments and in carrying out prior consultation of the supervisory authority.

14-2-7. Fate of personal data:

Upon completion of the Services, FUNBIM undertakes to destroy all personal data, subject to the Client’s option to request the return of the Data under the conditions of article 21-3 below.

14-2-8. Record of processing activities:

FUNBIM declares that it keeps a written record of all categories of processing activities carried out on behalf of the Client, including:

The name and contact details of the controller on whose behalf it acts, namely the Client, of any sub-processors, namely the third-party host, and, where applicable, of the data protection officer.
The categories of processing carried out on behalf of the Client.
Where applicable, transfers of personal data to a third country or an international organisation.
Insofar as possible, a general description of the technical and organisational security measures.

14-2-9. Documentation:

FUNBIM shall make available to the Client the documentation necessary to demonstrate compliance with all its obligations and to allow audits, including inspections, to be carried out by the Client or another auditor mandated by it, and shall contribute to such audits.

14-2-10. Obligations of the Client:

The Client undertakes to:

Document in writing any instruction concerning the processing of personal data by FUNBIM.
Ensure, beforehand and throughout the duration of the processing, that FUNBIM complies with the obligations provided for by the GDPR.
Supervise the processing, including carrying out audits and inspections of FUNBIM.

15. Intellectual property

The grant of the right to use the Application described in this Agreement does not entail any transfer of ownership of the Application to the Client.

FUNBIM remains the exclusive holder of the intellectual property rights in the Application and in each of its components, including their graphic presentation and the associated Documentation.

Publishers of third-party software included in the Application remain, for their part, the holders of the intellectual property rights in that software, where applicable.

The Client undertakes not to infringe in any way, directly or indirectly through third parties, FUNBIM’s intellectual property rights in the Application and the rights of the publishers of third-party software, or FUNBIM’s distinctive signs, in particular its trade name, trademarks, logos, copyrights, etc., whether or not they are protected by the registration of a patent, trademark or design.

The Client undertakes to report to FUNBIM any act of infringement and any breach of its intellectual property rights, in particular those relating to the Application or any of its components, by another application of which it may become aware. It shall be for FUNBIM alone to decide whether to bring legal action against the alleged infringers.

16. CONFIDENTIALITY

Under this Agreement, the parties may have access to confidential information of the other party.

Confidential information includes the terms and prices of this Agreement, the Documentation and any other information relating to the Application and its features, as well as information identified as confidential.

Confidential information does not include information which, through no fault, is in the public domain; information which the receiving party had in its possession before it was communicated, without having received it from the other party; information communicated to the parties by third parties without any obligation of confidentiality; and information which each party develops independently.

The party receiving confidential information shall preserve its confidentiality with the same care as it would apply to preserving its own confidential information, and may not communicate or disclose it to third parties except with the prior written consent of the other party or to the extent required by law. This confidentiality clause extends to all staff members, in respect of whom all necessary measures must be taken to comply with this obligation.

The terms of this obligation remain in force for the whole duration of this Agreement and for five (5) years after its end.

All documents communicated by one party to the other under this document remain its exclusive property and shall be returned to it on simple request.

17. Prices and payment terms

Except for the free Pack plan, prices are set out in the financial appendix. They are exclusive of taxes. It is the Client’s responsibility to make any declaration in this respect and to pay all corresponding duties and taxes.

It is specified that, as regards prices, the application of article 1195 of the French Civil Code is expressly excluded.

FUNBIM nevertheless reserves the right to change its prices on each anniversary date of the Agreement, provided that it informs the Client by e-mail or by an online notice one month in advance if the new prices are less favourable to the Client.

The subscription price is payable in advance to FUNBIM and only by direct debit.

The payment terms are as follows:

Annual payment for an annual subscription.
For a subscription without commitment, monthly payment: 1st instalment at the start of the Agreement, i.e. on the date the Application is operational (meaning the access codes have been delivered).

Subsequent instalments: monthly invoice and direct debit at the start of the month, on the 1st of each month.

In the absence of payment, FUNBIM will not grant the Client access to the Application. Consequently, the access codes to the Application will only be delivered to the Client once it has signed its direct debit mandate.

Other invoices issued by FUNBIM to the Client (for example for training) are payable under the conditions agreed between the parties for those services.

In the event of late payment of invoices, late payment penalties at a rate of 12% will apply to the Client automatically and without formal notice, in accordance with article L.441-6 paragraph 8 of the French Commercial Code.

In addition, in accordance with article D.441-5 of the French Commercial Code, the Client will owe a fixed indemnity for recovery costs of 40 euros per late-paid invoice, it being understood that FUNBIM reserves the right to claim additional compensation from the Client if the recovery costs actually incurred exceed this amount, upon presentation of supporting documents.

In all cases, should the Client fail to meet its payment obligation, in whole or in part, FUNBIM reserves the right to suspend access to the Application, without formality and without notice, without prejudice to its right to terminate the Agreement.

18. Audit

The Client agrees that FUNBIM may audit the Client’s use of the Application and verify that such use complies with the Agreement, in particular as regards the Client’s business and the Users using the Application. This audit will be carried out by any appropriate means, including on site, from the User databases.

In this respect, the Client is expressly advised that, because of the configuration of the Application and its use in SaaS Mode, FUNBIM has physical access to the data imported into the Application by the Client.

The Client further undertakes to respond to any request from FUNBIM and any request for the production of documents for the purpose of verifying compliance with the Agreement. Such an audit will be carried out after the Client has been duly informed by FUNBIM, and in strict compliance with confidentiality, business secrecy and data protection law.

19. Liability – Force majeure

19-1- Liability of FUNBIM:

FUNBIM performs its contractual obligations in compliance with the regulations and best practice, with all the care customary in its profession.

FUNBIM is bound by a best-efforts obligation. Consequently, its liability may only be engaged in the event of proven fault.

Moreover, and generally, FUNBIM shall not be held liable for damage that does not result directly from a breach on its part in the performance of its obligations, and in particular in the following cases:

Fault, negligence, omission or failure of the Client, non-compliance with the instructions for use of the Application and the Documentation.
Use of the Application in an environment or on an IT configuration that does not meet the technical prerequisites set by FUNBIM.
Misuse of the hardware and the Application by the Client or the Users.
Loss, partial or total destruction of Data following errors not attributable to FUNBIM.
Fault, negligence, omission or failure of a third party over which FUNBIM has no power of control or supervision.
Use of the Application in conjunction with programs not supplied or approved by FUNBIM and likely to affect the Application and/or the Client’s Data.
Malfunctions of the Client’s equipment.
Technical contingencies, disruptions on the Internet network.
Interruptions in the supply of electricity, transmission lines or Internet access due to public or private operators.
Abnormal or fraudulent use by the Client or third parties requiring the Application Service to be stopped for security reasons.

Furthermore, FUNBIM provides no warranty, implied or express, as to the merchantability of the Application or its fitness for the Client’s needs. Nor does FUNBIM guarantee the results linked to the use of the Application.

In any event, in the case of total or partial non-performance by FUNBIM of its obligations under this Agreement, its liability shall be limited to the direct loss suffered by the Client as a result, it being understood that the amount of damages that may be charged to FUNBIM, all losses combined and cumulated, may not exceed a sum corresponding to the last six months of subscription fees, exclusive of taxes, paid by the Client to FUNBIM, to the exclusion of any indirect loss, commercial loss or loss of profit.

Thus, FUNBIM shall not assume any liability for any direct or indirect, incidental or special loss or damage, such as commercial loss, loss of data, loss of orders or bookings, damage to brand image, any commercial disruption, loss of earnings, gains and/or profits, loss of profit, loss of opportunity, loss of customers (for example untimely disclosure of confidential information), or loss of use, suffered by the Client itself or by a third party.

Any action brought against the Client by a third party constitutes an indirect loss and, consequently, does not give rise to compensation.

19-2- Liability of the Client:

The Client is responsible for the content, and in particular the Data, that it transmits through the Application.

Consequently, and subject to the specific mandatory provisions relating to personal data, FUNBIM cannot under any circumstances be held liable for the Data transmitted, stored or received through the use of the Application.

Furthermore, the Client declares that it holds all the intellectual property rights in all the Data it imports into the Application.

Finally, the Client acts as an independent entity and consequently bears alone the risks of its business.

The Client is therefore solely responsible for its use of the Application and for the operation and updating of the Data it imports into it, and FUNBIM may not be held liable or pursued in this respect for any reason whatsoever, in particular in the event of a breach of laws or regulations applicable to the Client’s business.

19-3- Force majeure:

FUNBIM’s obligations shall be suspended automatically and without formality, and its liability released, in the event of events beyond its control such as, for example, the following: work stoppage, strike or industrial dispute, decision of the authorities, power failure, fire, flood, earthquake, storm, riots, wars, epidemics, force majeure or acts of God as recognised by the case law of the French courts, as well as any circumstance beyond FUNBIM’s control preventing the performance of its obligations under normal conditions.

20. Termination

Should either party fail to perform one or more of its obligations under this Agreement, the party to whom the unperformed obligation is owed shall send the other party a registered letter with acknowledgement of receipt, giving it formal notice to perform the obligation incumbent upon it.

If, within fifteen (15) days of receipt of this formal notice, the obligation owed by the defaulting party has not been performed, the party suffering the non-performance may terminate this Agreement, without prejudice to any damages that may be claimed.

The following in particular are deemed breaches justifying termination of the Agreement:

Non-payment, in whole or in part, of FUNBIM’s invoices by the Client when due.
Failure by FUNBIM to deliver the logins and passwords allowing the Client and the Users to access the Application.
Failure by FUNBIM to provide the services agreed for the Client and ordered by the Client (assistance, training, etc.).
Non-compliance by the Client with the conditions of use of the Application.

In all cases, should the Client fail to perform an obligation under this Agreement, FUNBIM shall be entitled to block access to the Application and consequently interrupt the provision of the Application Service, and, 15 days later, to terminate the Agreement.

21. End of the Agreement

21-1- Cessation of use of the Application:

Should the Agreement end for any reason whatsoever, the Client must immediately cease all use of the Application.

21.2- No refund:

The amounts paid by the Client under the Agreement shall remain fully vested in FUNBIM, and those still owed shall become immediately payable on the date of termination.

It is thus expressly specified that, in all cases and whatever the cause of termination of the Agreement, the Client may not claim a refund of the sums already paid to FUNBIM, which are definitively vested in it.

21-3- Fate of the data – Reversibility:

FUNBIM will keep the Client’s data for 30 days after the end date of the Agreement.

At the end of the Agreement, FUNBIM undertakes to hand over to the Client, at the Client’s request, and provided that such request is sent no later than 30 days after the end of the Agreement:

The Client’s own database.

22. General provisions

22.1. Non-solicitation of staff

Each party undertakes not to hire or employ, directly or through an intermediary, any employee of the other party, without the latter’s express prior consent. This undertaking applies for the whole duration of the Agreement and for the 24 months following its end.

Should either party fail to comply with this obligation, it undertakes to compensate the other party by paying it immediately and on simple request a lump sum equal to four (4) times the gross monthly remuneration of the employee at the time of his or her departure.

22.2. Commercial references

Notwithstanding the “Confidentiality” clause above, the Client expressly authorises FUNBIM to use the Client’s own identifying elements in order to identify the Client as a commercial reference for its business, such as its company name, trade name, logo and activity, or any other reference information.

22.3. Severability

Should any provision of the Agreement be held void in whole or in part, the validity of the remaining provisions shall not be affected. In that case, the parties shall, insofar as possible, replace the void provision with a valid provision reflecting the spirit and purpose of the Agreement.

22.4. Waiver

The failure of either party to exercise any of the rights conferred on it by law or by this Agreement shall not, in any circumstances, be construed as a waiver of the right to rely on such right in the future, or as an obstacle to its exercise.

22.5. Disputes

This Licence is governed by French law.

ANY DISPUTE ARISING BETWEEN THE PARTIES IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ITS VALIDITY, INTERPRETATION, PERFORMANCE, NON-PERFORMANCE, TERMINATION OR ANY ACT RESULTING FROM OR FOLLOWING IT, SHALL BE SUBMITTED TO THE COMMERCIAL COURT OF NÎMES, FRANCE, EVEN IN THE EVENT OF THIRD-PARTY PROCEEDINGS OR MULTIPLE DEFENDANTS.