The terms and conditions herein apply in their entirety, without any limitations or reservations, to all services offered (hereinafter together called "Services") supplied to clients (hereinafter: Clients) by KAEMO, société par actions simplifiée (Simplified joint-stock company) with a share capital of €40,161, having its registered office at 5 boulevard Vincent Gâche, CS 36204, 44262 Nantes Cedex 2, France and registered under the number 811 117 894 RCS Nantes, known as "Kinow" (hereinafter "KINOW"), via its website www.kinow.com (hereinafter "Website"). They constitute the essential conditions and decisive conditions and prevail over all general terms and conditions and/or other documents issued by the Client, regardless of terms therein. Hence, any order sent to KINOW via the Website or via submission by the Client of the quote duly initialled and signed that KINOW had established implies unconditional acceptance of the general terms and conditions herein.
The general terms and conditions herein are subject to amendments. Each of the provisions shall apply to the full extent permissible under the law and the nullity of any clause, in whole or in part, shall not affect the remainder of that clause and all the general terms and conditions. The fact the KINOW does not take advantage at any given time of a prerogative shall not imply a waiver of the said prerogative.
The general terms and conditions herein shall apply notwithstanding any provisions to the contrary contained in the Client's general terms and conditions of sale, if any. Therefore, the performance of the Services by the Service Provider shall be exclusively governed by the general terms and conditions herein, and by the order.
KINOW offers the provision to the Client, for consideration, of a service relating to the creation and management of a personalised online shop for distribution on payment of multimedia contents, under the responsibility of the Client.
KINOW also offers specific developments for use in connection with the online shop service (hereinafter "Specific Developments").
Supply of the online Services offered by KINOW is exclusively reserved to individuals and legal entities acting in a professional capacity.
Any contract entered into between KINOW and the Client for the purpose of supply of Services shall take effect as from the order placed by the Client for the term set out in the commercial offer subscribed, with the specification:
KINOW's remuneration is payable by the Client for the duration of his commitment (including prior notice period), it being specified that any month started shall be fully payable and charged.
For the application of Article 4 herein, the notification of termination of the contract shall be given:
The contract may also be terminated if KINOW sees fit to do so, in the event of breach or non-performance by the Client, or by those under its responsibility (its employees in particular), of more or more of its obligations under the contract, upon a simple notification by registered letter with acknowledgement of receipt, and after a prior formal notice to comply notified in the same manner has remained unheeded for eight (8) days. KINOW shall be also be free to put an end to this contract in the other events set out in the general terms and conditions herein.
In all other cases of termination of the Contract, the Client shall:
Services shall be ordered by the Client:
KINOW recommends to a Client placing an order for Services via the Website to keep this information in a hard or electronic copy. Any "double click" by the Client in respect of a purchase order shall constitute an electronic signature which has, between the parties, the same value as a handwritten signature. In the event of a dispute regarding whether the transaction is real or regarding the terms of the transaction, the computer records obtained from the server shall serve as proof between the parties.
Any order shall be deemed accepted following a confirmation email sent by KINOW. The order is personal to the Client and shall not be transferred without the KINOW's agreement. KINOW reserves the right to refuse or suspend any order from a Client with which there is a dispute relating to the payment of a previous order or one on which there is a settlement dispute pending.
The Services provided to the Client are accessible on KINOW's platform via the Internet, for the duration set out in Article 4 and in accordance with the terms of the rights of use set out in Article 11.
The Client chooses under its sole responsibility, after having taken note of the Services and their features, the Service(s) to order, in particular as regards the proposed storage capacity. KINOW shall not be held liable if the chosen Services do not suit the specific needs of the Client.
The Services may be changed based on improvements or updates made without prior information given to the Client.
The Client acknowledges that it has taken note of all the technical prerequisites necessary for the optimum functioning of the Services (type of internet connection, compatible browser, devices, etc.). The Client is also informed that these prerequisites may also change in particular for technical reasons. All the prerequisites and changes to them, if any, are accessible on the Website.
6.2.1 - To access the Services ordered, the Client must therefore connect to the Internet then to the website www.kinow.com, to which it has already subscribed. The Client shall be personally responsible for procuring the computer and telecommunications means to access the internet. The Client shall bear the telecommunications costs for internet access and use of the said site.
The strictly personal and confidential password generated by KINOW following the first Order of Services by the Client shall give it access to the Services. The Client undertakes to keep it confidential and not to disclose it in any manner whatsoever to anyone. Access to the Services is strictly reserved to the Client which shall be entitled to a private and personal, non-transferable and non-exclusive, right of use over the Services.
The Client shall be solely responsible for access to the Services and shall be responsible for taking all measures to maintain this access.
6.2.2 - The Services shall be accessible to the Client at any time, on a 24-hour basis throughout the year, except for the periods set out below:
The Client undertakes to comply with the volume thresholds based on the chosen option, in particular in terms of bandwidth capacity as defined upon the order of Services on the Website or in the quote. Any use above these thresholds shall be charged to the Client as per the conditions set out on the Website or in the quote upon the order of Services.
The Client undertakes to make a reasonable use of the Services. For this purpose, it undertakes in particular:
Technical support is available by email at the address below for the Client to contact KINOW, in particular to report any faults affecting the Services or for any other question regarding their use: firstname.lastname@example.org.
The Client is the sole holder of the rights over the video, image, text content and more broadly over all data that it uses in connection with the Services (hereinafter together referred to as "Content").
The Client grants to KINOW and to its sub-contractors the right of hosting, caching, copying and displaying the said Content and/or accessing them solely for the purposes of performance of the Services. This right shall automatically end at the termination of the contract entered into between the parties, save for the need to continue the hosting and/or processing of the Content, in particular for the purposes of reversibility operations.
8.2.1 - The Client shall be solely responsible for the commercial use of the Content that it publishes and/or distributes in connection with the Services, and for the contractual relations entered into with third parties in this context. For this purpose, the Client shall ensure compliance with all laws and regulations likely to apply in its relations with third parties, in particular the disclosure to users of these Contents, and of the terms and conditions of use or of sale.
The determination of the financial conditions of access to the Contents published in connection with the Services are under the sole and full responsibility of the Client.
No financial flow between the Client and its own clients shall transit via KINOW or its Website. The availability of various methods of payment offered by KINOW to the Client in connection with the Services for the distribution of Contents, shall not be construed as an authority to receive payments entered into between the parties.
8.2.2 - The Client shall have editorial responsibility for the use of the Services and shall be solely responsible for all data (Contents, message, comments, forum post etc.) disseminated and/or downloaded via the Services.
The Client shall be solely responsible for the quality, permissibility and relevance of the Content.
In particular, the Client declares and guarantees that the Content used in connection with the Services is in no way violent, racist, discriminatory, contrary to public policy and/or accepted principles of morality, is not likely to undermine human dignity and the protection of minors, nor does it condone war crimes, crimes against humanity or terrorist acts.
Furthermore, the Client declares and guarantees that it holds the intellectual property rights over the Contents, and/or has and can provide at any time any written and express authorisation(s) required for the legal publication and use of the Contents in connection with the Services. It guarantees that by creating, installing or downloading the Content in connection with the Services, it does not breach any right which may have been granted to it over all or part of the Content and that it does not infringe any third-party right, in particular their intellectual property rights.
If the Content provided for the purposes of use of the Services contains personal data, the Client shall guarantee to KINOW that it has complied with all its obligations under the Data Protection Act of 6 January 1978 or any other applicable law, and that it has informed the concerned individuals of the use made of the said personal data. In this respect, the Client shall hold KINOW harmless against any action, complaint or claim from a person whose personal data have been reproduced and hosted via the Services.
The Client shall also ensure that it does not use Content in connection with the Services which would require KINOW to comply with specific laws and regulations other than those expressly set out in the Contract.
8.2.3 - KINOW reserves the right to suspend the Services and/or immediately terminate the contract in the event of failure to comply with or violation of the provisions of this article by the Client.
8.2.4 - The Client shall hold KINOW harmless upon first request against any loss that KINOW may have to suffer on account of the Client's violation of or failure to comply with the provisions of this article.
The Client acknowledges that KINOW has no control over the transfer of Contents via the public communications networks used by the Client to access the Services and in particular the Internet. The Client acknowledges and accepts that KINOW cannot guarantee the confidentiality of Contents during the transfer of such contents on the said public networks. Therefore, KINOW shall incur no liability, in particular in the event of misappropriation, capture, corruption of Contents, or of any other event likely to affect these contents, occurring during their transfer via public telecommunication networks.
9.1.1. Any quote for Specific Developments submitted by KINOW to the Client shall be valid for 3 months, unless otherwise specified.
Any order for Specific Developments submitted by the Client in response to a quote or proposal by KINOW shall only bind the parties after it has been accepted and confirmed in writing by KINOW.
9.1.2. The technical and functional specifications for Specific Developments shall be set out in the quote.
KINOW is authorised, under its responsibility, to have recourse to sub-contracting.
If the working language is French, the deliverables shall be in French, unless otherwise specified explicitly. If the document is translated at the request of the Client, the related costs of translations shall be borne by the Client.
Lead times are given on an indicative basis taking into account the time frames expected by KINOW. They may be changed to fit the desired planning by mutual agreement of the parties. The lead times do not take into account any contingencies in respect of other parties involved in the project. Non-compliance with the lead times shall under no circumstances give rise to cancellation of the order, to payment of damages or to any other claim for any reason whatsoever.
If changes have to be made to the assignment on justified grounds, KINOW shall consider the impacts of such a request, in particular on lead times and costs. KINOW shall then send the Client a proposed amendment to this contract. The new terms and conditions shall become effective upon the signature of the amendment by both parties.
It is to be noted that, unless otherwise explicitly mentioned, any phase provided for in an order for Specific Development and that has started shall be payable.
KINOW is deemed to have met its obligation of delivery of the Specific Developments as soon as it sends the Client an email confirming their availability on the online shop. In the absence of any reservation notified by the Client by email to KINOW within five (5) working days of the said confirmation email, the Specific Developments shall be deemed unconditionally accepted.
10.1.1 The financial terms and conditions of the Services, which are based in particular on the options chosen by the Client, are those set out on the Website (for any order placed via the Website) or in the quote (for any other order).
Prices are net of taxes and costs and are expressed in euros.
The Client expressly accepts the revision by KINOW of the applicable prices once a year. KINOW undertakes to forward its new pricing schedule one (1) month before it becomes effective.
10.1.2 Unless otherwise set out in the special terms and conditions, the amounts payable by the Client shall be invoiced on a monthly basis by KINOW to the Client.
The invoicing address is at the Client's registered office, as set out in the order of Services.
Payment is due upon receipt of the invoice. The settlement period is the 30th day following the date of issue of the invoice. Payment shall be made without discount and by the method of payment available on the Website or specified in the quote.
10.2.1 The financial terms and conditions of Specific Developments shall be agreed by the parties in the corresponding order. Prices are net of taxes and costs and are expressed in euros.
10.2.2 Unless otherwise set out in special terms and conditions, a down payment of 50% shall be requested upon the order of Specific Developments. Payment shall be made by the Client upon receipt of the invoice, by bank transfer.
The balance shall be paid at the completion of the Specific Developments. Payment shall be made by the Client within thirty (30) days following receipt of the invoice, by bank transfer.
Notwithstanding any claim for damages, any default on payment, in full or in part, by the Client in relation to an invoice at its due date shall automatically give rise to, as per KINOW's choice:
In any event, the Client shall repay, besides the legal fixed penalty automatically applicable for recovery costs equal to 40 euros, all costs incurred due to non-payment on the due date, including fees for public officers and officers of the court.
Furthermore, and generally, any amount not paid by the Client on its due date, shall bear interests as from its due date (exclusive) up to its effective payment date (inclusive), without the need to serve a formal notice. Interests for late payment shall be calculated at the fixed rate of 7% per year, the said interests for late payment being capitalised if they are due for a full year in accordance with the provisions of Article 1343-2 of the Civil Code. Interests for late payment shall be due notwithstanding the application of any criminal clause in addition.
KINOW is and shall remain the holder of the ownership rights over any component of the Services and/or Specific Developments put at the disposal of the Client and/or developed following the Client's order, and generally of the hardware and software infrastructure, all logos, trademarks, results, whether or not patented, know-how, processes, knowledge and/or intellectual property rights, implemented or developed as part of the performance of the contract herein.
In consideration of the payment of the price of the Services by the Client as set out in Article 10 and subject to compliance by the latter with all its obligations under this contract, KINOW shall grant to the Client a personal, non-exclusive, non-assignable and non-transferable right of use over these components, solely for the purpose of use of the Services and/or the Specific Developments in connection with the Services, excluding any other purposes, solely for the term of the corresponding contract.
The Client shall under no circumstances put the Services, including the Specific Developments, at the disposal of a third party, and strictly undertakes not to make any other use thereof, including and not limited to any adaptation, modification, translation, arrangement, diffusion, decompilation.
The provision of the Services by KINOW shall not imply any transfer of ownership whatsoever to the Client.
The Client undertakes not to reproduce any component of the Services, including the Specific Developments, or any documents relating to them, by any means, in any form and on any medium whatsoever.
The Client shall not assign, in whole or in part, the rights and obligations arising herein, whether as part of a temporary assignment, a sub-licence or any other contract providing for the transfer of the said rights and obligations.
KINOW makes no warranties or guarantees of any kind, express or implied, relating to the Services, including in particular any implied warranties of merchantability and fitness of the Services for a particular purpose. The Services shall be deemed provided to the Client "as is" without any specific adaptations. KINOW shall give no guarantee that the functions of the Services meet the requirements and specific needs of the Client. It is the Client's responsibility to ensure the suitability of the Services to its needs and to take all necessary measures. KINOW shall not guarantee the performance and results of the Services, in particular technical, economic and/or commercial.
In addition to the provisions of the above paragraph, in the event of Specific Developments, the Client shall be solely responsible for defining its needs, for the accuracy and precision of the information that it provides, and for the suitability of any deliverable to its needs. KINOW guarantees the compliance of the Specific Developments strictly within the limit that has been expressly set out in the specifications annexed to the order.
13.1 - KINOW shall not be accountable for any indirect or consequential damages such as loss in earnings, financial losses and/or commercial losses whether or not resulting from use of the Services by the Client. In any event, the amount of KINOW's liability shall be strictly limited to repayment of the amounts actually paid by the Client in respect of the quarter preceding the date of occurrence of the operative event generating the liability.
Furthermore, KINOW shall not be held liable for the accidental destruction of the Content by the Client or by a third party who has accessed the Services using the Client's user identification.
13.2.- Any simulation, performance report, and/or forecast provided to the Client by KINOW are solely intended to present the characteristics and functioning of the Services. Since they are given on an indicative basis only, they shall under no circumstances constitute guarantees of income or of profit, nor give rise to any liability for KINOW.
13.3 - KINOW shall in under no circumstances be held liable in the event of loss caused by an event of force majeure. Shall be considered as events of force majeure with regard to KINOW's obligations, events which are beyond its control and which it cannot reasonably be required to foresee. The same shall apply in all circumstances, even if they do not all within the above definition, in particular in cases of civil commotion, terrorist acts, machine breakage, fire, storm, water damage, strike, shortage of raw materials, legal or regulatory provisions, blocking of telecommunications networks, blocking of computer networks (including switched networks of telecommunication operators), failure of the public electricity distribution network, loss of internet connectivity likely to prevent or hinder the performance of this contract.
13.4 - KINOW is bound by a best efforts obligation in respect of the contract herein.
In the event of termination of the Contract, in whole or in part, on any grounds whatsoever, KINOW undertakes to return to the Client all text data in CSV format, in the state in which they are on that date. KINOW shall have no other obligation to return any data other than text data, the Client undertaking to keep copies of all other data, in particular image data in jpeg, png or gif format.
The Client expressly authorises KINOW to display on its Content any message or boxed text the purpose of which is to promote KINOW's business.
The Client also expressly authorises the use of its trade names, trademarks, logos, in KINOW's business documents.
The Parties shall ensure, throughout the duration of the contract and after its termination, for any reason whatsoever, that they maintain the confidentiality of the information and documents that they have obtained in connection with the contract herein. However, and in accordance with the terms of § 15, the Client expressly authorises KINOW to mention the Client's name among its references.
Any reference to KINOW's services shall be subject to its written and prior agreement. KINOW and the Client may together set up a communication medium and its content so as to communicate unilaterally on a project.
The general terms and conditions herein, as well as the contracts that they govern are exclusively subject to French law. In the event of disputes, the Courts of NANTES (France) shall have sole jurisdiction, even in the case of summary proceedings, third party proceedings, incidental claims or multiple respondents.
The Client accepts that KINOW may collect, keep, process and use its personal data (surname, first name, postal address, telephone number, email, IP address and client number) for the purposes of improving KINOW's customer file.
All information disclosed by the Client is automatically processed electronically, KINOW having made the declaration in compliance with the Data Protection Act of 6 January 1978. In compliance with this law, it is stated that each Client has a right of access, objection, rectification, alteration and deletion over any personal data on it.
The Client may at any time exercise this right by contacting KINOW:
KINOW shall not disclose the information it has collected to any third party. The personal data provided are kept as long as the account is active and are entirely deleted from KINOW's servers through deletion of the user account, except for the IP addresses.
As long as the user account is active, the personal data shall only be kept for the purposes of displaying the user profile.
The person responsible for the processing is: Mr Philippe Sang, whose address for service is as follows: Kaemo, 28 rue de Strasbourg, 44000 Nantes - France
The data may be disclosed following requisition from the judicial authority.
Any content edited on this Website is the exclusive property of KINOW. Any reproduction, in whole or in part, of this content is prohibited and constitutes an offence.
The creation of simple or deep hyperlinks to the Website is subject to the express and prior authorisation of KINOW. The Client is hereby informed that a hyperlink may lead it to different sites, beyond the responsibility of KINOW.
The contract shall under no circumstances be transferred, in whole or in part, for consideration or free of charge, by the Client, without the written, express and prior authorisation of KINOW.
If one of the clauses of the general terms and conditions herein were to be null and void due to a change in the law or regulation or by a decision of the court, this shall under no circumstances affect the validity and compliance of the other provisions of the general terms and conditions herein.
The fact that KINOW does not take advantage of an undertaking by the Client in respect of one of obligations referred to herein shall not be construed as a waiver of the obligation in question.