GENERAL TERMS OF SERVICE

Updated July 2023 

The Company FACILECOMM, a simplified joint-stock company with a capital of 253,281.00 euros, registered with the Toulouse Trade and Companies Register number 523 471 019, located at 3 Avenue de l’Europe, Building A, 31400 Toulouse, whose value added tax (VAT) Intra-Community EU number is R44523471019 (hereinafter « FACILECOMM »), provides e-merchants with a SaaS software solution called Shippingbo, dedicated to the management of their omnichannel logistics (the « SHIPPINGBO SOLUTION »).

The SHIPPINGBO SOLUTION is exclusively for supply chain actors, including notably e-commerce professionals or distributors, logisticians, freight forwarders, or carriers, allowing them to optimize the processing of orders they receive from their own clients (whether it is the final buyer or another actor in the chain).

Under no circumstances is it intended to be used by individuals or professionals from other sectors, unless there is a specific agreement with FACILECOMM (for example, access may be granted to developers to establish connections between SHIPPINGBO SOLUTION and third-party services).

These General Terms of Service, established in accordance with Article L. 441-1 of the French Commercial Code, apply as of right to the services and services provided by FACILECOMM to its clients during its activity (hereinafter the « General Terms of Service »).

These terms and conditions take precedence over any other general purchasing conditions, except where the mandatory provisions of the French Public Procurement Code apply.

IMPORTANT

ANY SUBSCRIPTION TO THE SHIPPINGBO SOLUTION IMPLIES UNRESERVED ACCEPTANCE OF THESE GENERAL TERMS OF SERVICE.

ARTICLE 1. DEFINITIONS

In the context of these General Terms of Service, the following terms shall have the meaning given below:

·        « ANOMALY »: refers to any repetitive and reproducible difficulty in the operation of the SOLUTION SHIPPINGBO. ANOMALIES are classified into different levels of severity depending on whether they are:

(i) Critical (the ANOMALY makes the execution of the SHIPPINGBO SOLUTION impossible);

(ii) Major (the ANOMALY substantially affects the normal use of the main functionalities of the SOLUTION SHIPPINGBO); or

(iii) Non-blocking, or minor (all the main functionalities can be used even if it may require a workaround). 

·        « CLIENT »: refers to the legal entity contracting with FACILECOMM. By extension, the notion of “CLIENT” includes all natural persons who represent it, act or use the SERVICES on its behalf (for example, members of its staff).

·        « ACCOUNT »: refers to the CLIENT’s account on the SITE allowing him to access the SERVICES and benefit from the functionalities of the SOLUTION SHIPPINGBO. The ACCOUNT includes a personal interface of the CLIENT, allowing him to set up and manage his ORDERS., manage and set up his ACCOUNT and retrieve data related to his ORDERS. Access to the ACCOUNT is done through the IDENTIFIERS.

• « ORDER »: refers to a buyer’s acceptance of product offers made by the CLIENT, or by one of its own clients upstream of the distribution chain, through its various points of sale (e-commerce sites, online marketplaces, stores, etc.).

·        « CONTRACT »: refers to:

–    The present General Terms of Service, including any Annex or Amendment expressly referring to it, concluded in writing between the PARTIES; and

–        The OFFER.

·        « DATA »: refers to all information, texts, logos, brands, animations, drawings and models, computer developments, photographs, hypertext links, personal or non-personal data, and in general, all elements and contents of the CLIENT, or relating to his ORDERS, which he integrates (or has integrated) into the SOLUTION SHIPPINGBO, in any way and in any form whatsoever.

·        « DOCUMENTATION »: refers to all documents, supports, guides, user manuals or operating instructions, instructions, in any form whatsoever and on any medium whatsoever, communicated by FACILECOMM or made available to the CLIENT on the SITE or through the SHIPPINGBO SOLUTION allowing to describe the SOLUTION SHIPPINGBO, its functionalities, the technical conditions and restrictions of its use, or also all the offers proposed by FACILECOMM.

·        « CLIENT ENVIRONMENT»: refers to the CLIENT’s computer environment in which the SHIPPINGBO SOLUTION is used. The CLIENT ENVIRONMENT includes the hardware, software and applications used by the CLIENT, the THIRD-PARTY SERVICES and, in general, all the CLIENT’s information systems.

·        « IDENTIFIERS »: refers to all information and identification codes allowing access to the ACCOUNT (including password, API key, OTP code, SSO, etc). These IDENTIFIERS are for the exclusive use of the CLIENT who is solely responsible for them.

·        « CONFIDENTIAL INFORMATION »: refers to (i) protected information (held by the disclosing PARTY or a third party to whom the disclosing PARTY has a non-disclosure obligation), including any information, know-how and software, including without limitation its source code and any translation, compilation, partial copy and derivative work; (ii) any information designated as confidential at the time of its disclosure to the receiving PARTY, or when it is transmitted orally, identified as confidential and recorded in written or other material form (including electronic) including a clearly stated confidentiality notice and transmitted to the receiving PARTY within thirty (30) days following the disclosure; (iii) any information which, in view of the circumstances of the disclosure, should be treated in good faith as being protected and confidential.

·        « OFFER »: refers to the commercial offer of A. subscribed by the CLIENT and specifying the SERVICES as well as the functionalities and modules of the SHIPPINGBO SOLUTION to which the CLIENT has access under the CONTRACT. The detail of the OFFER is integrated into the DOCUMENTATION provided to the CLIENT before his subscription to the CONTRACT. The OFFER is an integral part of this CONTRACT.

·        « PARTNERS »: refers to all actors in the supply and distribution chain (including, distributors or suppliers, merchants, marketplaces, CMS, carriers and/or logistics companies, freight forwarders, manufacturers, GMS/GSS, software publishers and other companies operating in the ecosystem of the supply and distribution chain) partners of FACILECOMM through which the CLIENT markets, stores and/or transports the products of the ORDERS. The PARTNERS have, at a minimum, a connection to the SHIPPINGBO SOLUTION by an API system (application programming interface) or connectors, or personal access, as a direct client of FACILECOMM.

·        « PARTIES »: collectively refers to FACILECOMM and the CLIENT subscribing to this CONTRACT. A “PARTY” refers individually, indifferently, to FACILECOMM or the CLIENT.

·        « SERVICES »: refers to all services provided by FACILECOMM to the CLIENT under this CONTRACT. The SERVICES include according to the OFFER:

–        The provision of the SHIPPINGBO SOLUTION;

–        The maintenance of the SHIPPINGBO SOLUTION;

–        The support and assistance service; as well as

–        Where applicable, any additional service subscribed by the CLIENT such as the commissioning of the SHIPPINGBO SOLUTION, any additional assistance, or training services for the CLIENT’s staff in the use of the SHIPPINGBO SOLUTION;

–        Etc.

·        « THIRD PARTY SERVICE »: refers to any software solution, application, website, platform, information system, connector, API, or service provided and developed by a third party under this CONTRACT. This includes any PARTNER or the CLIENT itself, used by the CLIENT during its business and accessed through the SOLUTION SHIPPINGBO. THIRD-PARTY SERVICES may include, but are not limited to, external ERPs, CRMs, CMSs, OMSs, TMSs, or WMSs. These THIRD-PARTY SERVICES are not under the control of A., which does not guarantee their content, proper functioning, data, products, or results. Access to THIRD-PARTY SERVICES is provided solely for convenience. 

·        « SITE »: refers to the website published by FACILECOMM and accessible at www.shippingbo.com.

·        « SHIPPINGBO SOLUTION »: refers to the SaaS-hosted software solution presented on the SITE, integrating the functionalities included as part of the OFFER. These functionalities include: 

– Centralizing ORDERS from all sales points (e-commerce sites, online marketplaces, stores, etc.);  

– Analytical management of ORDERS; 

– Directing the ORDERS for preparation to the various recipients and service providers responsible for fulfilling them (both internal and external logistics providers (provided that they are connected to the SHIPPINGBO SOLUTION), carriers, etc.);  

– Preparing the ORDER (or having it prepared by a PARTNER);

– Automatically generating transport labels associated with the ORDER;

– Monitoring ORDER statuses;

– Informing end buyers about the progress, processing, and status of their ORDER.

– Etc. 

The SHIPPINGBO SOLUTION also integrates any connectors (software tools developed to connect the CLIENT ENVIRONMENT or certain THIRD-PARTY SERVICES to the SOLUTION SHIPPINGBO) developed by FACILECOMM.

ARTICLE 2.  SUBJECT – CONTRACTUAL DOCUMENTS

2.1. Subject

The purpose of this CONTRACT is:

• To define the conditions under which the SHIPPINGBO SOLUTION is made available to the CLIENT; 
• To set the terms and conditions of CLIENT access to the SERVICES offered by FACILECOMM, and the respective rights and obligations of the PARTIES arising from the use of these SERVICES. 

2.2. Contractual documents

The CONTRACT consists of:

• The OFFER;
• The Data Protection Agreement;
• These General Terms of Services;
• Any other appendix or amendment to these General Terms of Services.

It is understood that these documents mutually explain each other.

However, in the event of any contradiction or inconsistency between the terms of the various documents, the documents shall take precedence over each other in the order set out above.

ARTICLE 3. MODIFICATIONS 

3.1. Contracts concluded with an initial commitment period

At the end of the initial commitment period of the CLIENT, as defined in Article 14  « Duration », FACILECOMM reserves the right to make modifications to these General Terms of Service at any time.

These modifications will be communicated to the CLIENT through any means thirty (30) days before they come into effect.

In the event of a substantial modification negatively impacting the CLIENT’s activities, the CLIENT may oppose this modification and terminate the CONTRACT without any fees by sending a registered letter with acknowledgment of receipt within thirty (30) days from the effective date of the modifications, as specified in Article 15 « Suspension – Termination » of these General Terms of Service.

However, when necessary, especially due to changes in the SHIPPINGBO SOLUTION and/or the overall context of the CONTRACT, including economic or regulatory context, FACILECOMM may modify these General Service Conditions during the initial CLIENT commitment period defined in Article 14 « Duration », provided that the aforementioned notice period (a minimum of thirty (30) days) is respected.

During the initial commitment period, the CLIENT may object to the implementation of these modifications. 

In this scenario, the PARTIES may agree to continue the CONTRACT under the existing terms or, if FACILECOMM refuses, terminate the CONTRACT prematurely.

3.2. Contracts concluded without an initial commitment period

The CLIENT is informed that FACILECOMM reserves the right to modify these General Terms of Services at any time.

These modifications will be brought to the attention of the CLIENT by any means thirty (30) days before they come into force.

In the event of a substantial modification that has a negative impact on the CLIENT’s activities, the CLIENT can oppose this modification and terminate the CONTRACT without any charges, by sending a registered letter with acknowledgement of receipt within thirty (30) days of the date on which the modifications come into force and under the conditions defined in Article 15 « Suspension – Termination » of these General Terms of Services.

ARTICLE 4.  HOW TO ACCESS THE SHIPPINGBO SOLUTION

4.1. Opening an ACCOUNT

The CLIENT declares that they have been informed that FACILECOMM may refuse the opening of an ACCOUNT and, consequently, access to the SERVICES:

·        To a CLIENT who has been subject to a contract with A. terminated within the last (1) year due to a breach of contractual obligations;

·        To a CLIENT who has not fully settled the amounts for which they may be indebted to FACILECOMM under a previous contract;

·    For any other legitimate reason as specified in writing, for instance with no exhaustive cases, cases where the CLIENT is not a professional in the sectors covered by SHIPPINGBO SOLUTION (e-commerce, distribution, transport, or logistics), where the administrative information provided by the CLIENT is inaccurate, where the contact using SHIPPINGBO SOLUTION is not the CLIENT’s designated contact, or where the CLIENT ENVIRONMENT is incompatible with the integration of SHIPPINGBO SOLUTION (the CLIENT does not comply with data confidentiality or proper use of the ACCOUNT).

 4.2. IDENTIFIER management

Access to SHIPPINGBO SOLUTION results in the opening of an ACCOUNT. The opening of the ACCOUNT will be carried out by the CLIENT either on the website or by FACILECOMM upon receipt of the CLIENT’s agreement.

Each user of the ACCOUNT has their own IDENTIFIERS, granting them access to the ACCOUNT.

In any case, the CLIENT must ensure the accuracy of the information and promptly notify FACILECOMM when updates are necessary.

If the information related to the CLIENT’s registration is not up-to-date, complete, and accurate, FACILECOMM reserves the right to temporarily suspend or permanently terminate the CLIENT’s access without delay or prior notice. This action will occur after a reasonable notice period, as expressly indicated in the letter of formal notice.

The CLIENT undertakes to keep the IDENTIFIERS strictly confidential, take all necessary measures to preserve their confidentiality, and promptly notify FACILECOMM in case of unauthorized use of the ACCOUNT. By express agreement between the PARTIES, all operations carried out using the CLIENT’s IDENTIFIERS are deemed to originate from the CLIENT, who is solely responsible for their safekeeping.

It is agreed between the PARTIES that any breach of this Article may result in automatic termination of the CONTRACT.

The CLIENT is informed that authorized teams from FACILECOMM may, however, access their ACCOUNT through so-called « impersonation » features. Importantly, this does not involve gaining knowledge of the CLIENT’s IDENTIFIERS by FACILECOMM’s teams.

In this regard, FACILECOMM’s teams will never request the CLIENT to disclose or transmit their IDENTIFIERS, and any such request should be reported as fraudulent to FACILECOMM.

Access to the ACCOUNT by FACILECOMM’s teams is subject to the following conditions:

–      An express prior request from the CLIENT requiring such access; or

–        For one of the following reasons: (i) assistance in configuring or setting up the ACCOUNT; (ii) response to a request for support or assistance; (iii) investigation of an alert or anomaly on the ACCOUNT; (iv) “audit of the use of the SOLUTION SHIPPINGBO” by our team of experts; advice on the use of the SHIPPINGBO SOLUTION by our team of experts ; and advice to demonstrate the performance of the ecosystem that can offer the SOLUTION SHIPPINGBO; (v) a commercial exchange to assess with the CLIENT whether their OFFER is well suited to their needs and, if necessary, make them a new, more appropriate OFFER.  

ARTICLE 5. THE CLIENT’S OBLIGATIONS

5.1. The CLIENT’s general obligations

When using the SERVICES, the CLIENT undertakes to comply with the laws and regulations in force, as well as the rights of third parties and the provisions of this CONTRACT. The CLIENT also undertakes to act fairly towards FACILECOMM.

FACILECOMM will not make up for any lack of training on the part of the CLIENT or its employees if it appears that the latter do not have the skills required to use the SERVICES.

To enable FACILECOMM to carry out the SERVICES in the best possible conditions, the CLIENT undertakes to:

• Cooperate with FACILECOMM on all matters relating to the SERVICES;
• Provide FACILECOMM, at its request and as soon as possible, with all documents and information in its possession which are useful for the performance of the SERVICES and the provision of the SOLUTION SHIPPINGBO. In this respect, the CLIENT acknowledges that the time taken by FACILECOMM to provide the parcel labels is subject to the provision of certain documents, particularly the CLIENT’s transport contract. The CLIENT must provide its transport contract. If another contract of carriage is used, the CLIENT may be found at fault. In this respect, FACILECOMM is entitled to make up the cost of the labels and/or terminate this CONTRACT.
• Comply with the general conditions of use specific to SOLUTION SHIPPINGBO, including this CONTRACT and any DOCUMENTATION provided by FACILECOMM;
• Take charge of the corrective maintenance services after acceptance of the estimate drawn up by FACILECOMM when these additional services are required because of any malfunction which is the consequence of:

–        Failure by the CLIENT to comply with its obligations hereunder and improper use of the SOLUTION SHIPPINGBO,

–       Use of SHIPPINGBO SOLUTION by an unauthorised third party,

–       The CLIENT’s failure to train its personnel,

–         Failure to provide sufficient details in any error report sent to FACILECOMM.

• Carry out regular back-ups of its DATA;
• Take all reasonable steps to prevent any unauthorised access or use of the ACCOUNT and, in the event of such unauthorised access or use, to notify FACILECOMM as soon as possible;
•  Authorise FACILECOMM to use its name, company name, logo and an example of a message as a “Client Reference” for the purposes of communication or commercial promotion without any remuneration on the part of FACILECOMM;
• Authorise FACILECOMM to use testimonials, the content and presentation of which will be agreed between the PARTIES; 
• Pay the price corresponding to the SERVICES; 
• To set up and implement the SERVICES themselves in accordance with the documentation provided by FACILECOMM whenever possible, or, where applicable, to pay for the implementation and commissioning services provided by FACILECOMM’s teams at the flat rate or hourly rate in force.

In any event, the CLIENT undertakes to:

• Not to use the SHIPPINGBO SOLUTION to offer or disseminate any products, services or DATA contrary to public decency or order;
• Not to divert the purpose of the SHIPPINGBO SOLUTION to commit crimes, offences or contraventions punishable under the French Criminal Code or any other law;
• Respect the privacy of third parties and the confidentiality of exchanges with FACILECOMM or the PARTNERS;
• Not to violate or attempt to violate the security or integrity of the SOLUTION SHIPPINGBO, to communicate any misleading information, to use the information for illicit purposes;
• Not to use the SERVICES for deceptive commercial practices, misleading or unsolicited advertising, or for illicit purposes, contrary to good practice or the laws and regulations applicable thereto, without this list being exhaustive.

Any delay, non-performance, or poor performance in the provision of the SERVICES that is due to a breach by the CLIENT of these terms and conditions, or a failure to comply with the conditions of use set out in the DOCUMENTATION, may under no circumstances be held against FACILECOMM.

5.2. The CLIENT’s specific obligations

1. Activity-related obligations

The CLIENT acknowledges that only professionals in e-commerce, distribution, logistics or transport can benefit from the SHIPPINGBO SOLUTION.

They acknowledge that they have benefited from FACILECOMM with all useful information to help him/her choose his/her OFFER according to his/her status. As such, it is solely responsible for the qualification of its activities and the OFFER subscribed to regarding its activity and the authorizations and approvals it holds.

The CLIENT undertakes not to use, or attempt to use, functionalities or modules of the SHIPPINGBO SOLUTION that may fall within the scope of a regulated activity if it does not itself meet the conditions for the exercise of this activity.

In addition, it undertakes not to falsely present itself or mislead third parties or FACILECOMM about its activity or the approvals or authorizations it holds.

Under no circumstances can FACILECOMM be held liable for the consequences of a breach of the regulations applicable to the transport activities by the CLIENT (including any tax or customs regulations applicable to the transport of goods, etc.) or of the contracts it concludes with third parties (final buyers, PARTNERS, etc.) for the activity managed using the SHIPPINGBO SOLUTION.

2. Obligations related to PARTNERS and THIRD-PARTY SERVICES

The CLIENT acknowledges that the use of the SHIPPINGBO SOLUTION requires the prior opening of a professional account with at least one of the PARTNERS and/or to connect the SHIPPINGBO SOLUTION with THIRD-PARTY SERVICES.

The CLIENT also undertakes to comply with the general terms and conditions of services of the PARTNERS through which it markets, stores and/or transports the products.

In addition, the CLIENT undertakes, when resorting, connecting, or using, in general, THIRD-PARTY SERVICES in the context of its use of the SHIPPINGBO SOLUTION, to be aware of and respect:

– All rights, and in particular intellectual property rights, of third parties applicable to the THIRD-PARTY SERVICES; including obtaining any necessary authorizations or licenses;

 – Any terms of use, sale, or services applicable to the THIRD-PARTY SERVICES. 

The CLIENT must, in all cases and before using any THIRD-PARTY SERVICE in connection with the SHIPPINGBO SOLUTION, ensure that such use complies with its contractual obligations with the third parties concerned or FACILECOMM, and that these obligations do not create incompatibilities between the THIRD-PARTY SERVICES and the FACILECOMM SERVICES.

ARTICLE 6. FACILECOMM OBLIGATIONS

FACILECOMM undertakes to carry out the SERVICES in compliance with the rules applicable to the purpose of the CONTRACT, as these rules result from the rules of the art, European standards, laws, decrees, orders and national, local or professional legislative, regulatory or administrative texts.

It is expressly agreed between the PARTIES that FACILECOMM is subject to a general obligation of means and that it is not bound by any obligation of result or reinforced means of any kind.

6.1. Duty to advise and duty to warn

FACILECOMM is bound by an obligation to advise and warn the CLIENT.

In this regard, FACILECOMM undertakes to:

• Provide the CLIENT with all the DOCUMENTATION necessary for the understanding of the SERVICES and the use of the SHIPPINGBO SOLUTION in order to enable him to (i) choose his OFFER and (ii) usefully benefit from the SERVICES for the needs of his business;

• Alert the CLIENT, as soon as possible, to any difficulty encountered in the performance of the SERVICES and/or in the event of incompatibility of the CLIENT ENVIRONMENT with the SHIPPINGBO SOLUTION of which FACILECOMM becomes aware; 

• Provide support and assistance in accordance with this CONTRACT.

As such, the CLIENT acknowledges that he has been able to verify the adequacy of the SHIPPINGBO SOLUTION and the OFFER to his needs and that he has received from FACILECOMM all the necessary information allowing him to assess the functionalities of the SHIPPINGBO SOLUTION and their correspondence with his own expectations.

6.2. Availability

The SITE and the SHIPPINGBO SOLUTION are accessible 24 hours a day, 7 days a week, except in the event of force majeure or an event beyond the control of FACILECOMM and subject to any breakdowns and interventions necessary for the proper functioning of the SERVICES.

Thus, under no circumstances can FACILECOMM be held responsible for disruptions, cuts and anomalies that are not of its own making and that would affect transmissions by the Internet network and more generally by the communication network, regardless of their size and duration.

Similarly, FACILECOMM cannot be held liable in the event of malfunctions, interruptions, failures or limitation of all or part of the functionalities of the SHIPPINGBO SOLUTION caused by or related to third-party systems, environments, or software, or to the CLIENT ENVIRONMENT, and in particular to THIRD-PARTY SERVICES connected to the SHIPPINGBO SOLUTION, by any means whatsoever.

It is also specified that FACILECOMM may be required to temporarily interrupt access to the SHIPPINGBO SOLUTION and the SITE or to suspend access to these elements for maintenance reasons, for the improvement and installation of new functionalities, for the audit of proper operation, security or in the event of a malfunction or threat of malfunction.

In any case, FACILECOMM will notify the CLIENT, by any means and at least 24 (twenty-four) hours in advance, of the occurrence of these maintenance operations. Exceptionally, this period may not apply if FACILECOMM has to carry out an emergency maintenance operation, for security reasons, to ensure the stability of the SOLUTION, to deal with an imminent and unforeseen danger or in order to protect the SOLUTION and/or the SITE and/or the CLIENT against fraud, malware, spam, or any cybersecurity risk. In these cases, FACILECOMM shall not be liable to the CLIENT for any compensation or damages whatsoever.

6.3. Commissioning

As a matter of principle, the CLIENT is responsible for all the operations that must be carried out for the implementation, configuration, configuration and, in general, commissioning of the SHIPPINGBO SOLUTION, in accordance with the DOCUMENTATION.

Therefore, the CLIENT is liable for any error or malfunction caused by improper installation or a defect in the parameterization, unless such errors or malfunctions result exclusively from a failure by FACILECOMM to comply with its advisory obligations.

The CLIENT may also subscribe to a commissioning by third parties approved by FACILECOMM or by FACILECOMM itself, in return for a dedicated fee.

In addition, the costs related to the travel of personnel by FACILECOMM (transportation, accommodation, etc.) are invoiced separately. FACILECOMM may provide the relevant supporting documents at the request of the CLIENT.  

It is expressly specified that when all or part of the operations related to commissioning are carried out by FACILECOMM, FACILECOMM performs this service according to the information and instructions provided by the CLIENT, the latter being the only one capable of determining its operational needs, due to its business expertise. It is specified that the CLIENT is also required to verify that the result of these configurations corresponds to the behaviour he expected. 

FACILECOMM will only be able to offer advice based on its knowledge of the SHIPPINGBO SOLUTION and its general experience in the logistics sector.

Therefore, the CLIENT will be solely responsible for his/her choices and requests related to the configuration and configuration of the SHIPPINGBO SOLUTION. He will also be solely responsible in the event of a poor implementation of the SHIPPINGBO SOLUTION if it results from the absence or incorrect communication of information to FACILECOMM (incomplete or erroneous information, in particular).

In certain cases, detailed between the PARTIES, it will be necessary to provide an audit and consulting service before the implementation of the software, including the realization of a restitution to the CLIENT by FACILECOMM.

Training in the use of the software may also be offered by FACILECOMM to the CLIENT as an additional measure.

6.4.  Maintenance

• Corrective maintenance

FACILECOMM undertakes to make every effort to make the technical corrections to be made to the SHIPPINGBO SOLUTION and the SITE regarding any anomalies in operation and/or compliance with the applicable safety standards.

As such, FACILECOMM undertakes, if necessary, to correct the ANOMALIES as soon as possible, according to their criticality (critical, major or non-blocking) or, if necessary, to offer a workaround solution or any other means to ensure the operation of the SHIPPINGBO SOLUTION.

In order to be identified and dealt with by FACILECOMM, an ANOMALY must be reported to support by opening a ticket on the dedicated interface integrated into the SHIPPINGBO SOLUTION.

Any report of an ANOMALY must be sufficiently detailed and precise to allow FACILECOMM to identify and reproduce the ANOMALY in question.

It is expressly agreed between the PARTIES that FACILECOMM will not be able to start resolving the ANOMALIES until it has been put in possession of the elements necessary for their correction.

Any intervention resulting from a misuse by the CLIENT of the SHIPPINGBO SOLUTION, the SERVICES or the SITE may give rise to a specific invoice, it being specified that FACILECOMM also reserves the right to call on subcontractors to provide these services.

In addition, any request to modify or evolve the configuration and configuration of the SHIPPINGBO SOLUTION must be excluded from corrective maintenance services. 

•  Upgradeable maintenance

The CLIENT acknowledges that the SHIPPINGBO SOLUTION being a SaaS (Software as a Service) solution provided online, it does not benefit from any specific right to maintain previous versions of the SHIPPINGBO SOLUTION, and it is expressly informed that FACILECOMM may provide evolutionary maintenance consisting of the addition, modification or deletion of functionalities on the SITE and the SHIPPINGBO SOLUTION.

The addition of specific functionalities or the development of connectors with THIRD-PARTY SERVICES by FACILECOMM to meet the needs of the CLIENT constitutes one or more specific developments, subject to additional quotes.

6.5. Connection with THIRD-PARTY SERVICES

To the extent that the SHIPPINGBO SOLUTION allows, in particular, logisticians, carriers or freight forwarders to connect their THIRD-PARTY SERVICES (in particular WMS, TMS, CRM, CMS, ERP, etc.) with the OMS of their e-merchant clients or to connect carriers with logisticians, freight forwarders or e-merchants, the SHIPPINGBO SOLUTION participates in the connection of players in the e-commerce and logistics sectors,  thanks to FACILECOMM’s network of PARTNERS and clients.

FACILECOMM thus allows the transfer of information relating to ORDERS between these different actors in the “supply chain”, whether it is but not limited to:

–        Through the use of the natively connected modules of the SHIPPINGBO SOLUTION which allow the ORDER information of a client acting as an e-merchant to directly transmit the information to the logisticians, carriers or freight forwarders concerned who themselves have access or an account on the SHIPPINGBO SOLUTION; or

–        Through the use of APIs exposed by FACILECOMM and connectors (developed and published or not by FACILECOMM, some APIs may be developed by PARTNERS) to allow the transit of information between THIRD-PARTY SERVICES (online platforms, third-party OMS/WMS/TMS, etc.) and the CLIENT’s SHIPPINGBO SOLUTION.

In any case, the CLIENT acknowledges that FACILECOMM only plays the role of a simple technical intermediary and is not a party to the CLIENT’s contractual relations with the PARTNERS or any other user of the SERVICES. The SHIPPINGBO SOLUTION (including the APIs and connectors developed by FACILECOMM) is only a technical tool for carrying out these information transfers between business partners.

The CLIENT is solely responsible for and organizes the data transfers with other users, in particular DATA relating to ORDERS.

FACILECOMM only provides the technical tool for these exchanges of DATA and undertakes not to give orders for the transfer of DATA without prior instructions or information from the CLIENT.

In the event of the transfer of personal data to third parties, the CLIENT shall ensure that such processing complies with the data protection regulations in force applicable to such DATA and shall take the necessary measures vis-à-vis its own clients or service providers, in accordance with Article 11 “Protection of personal data”. In particular, the CLIENT shall inform the persons concerned of the transfers of personal data and the recipients.

In this respect, it is specified that when the CLIENT works with a logistician, he must not give him access to the SHIPPINGBO SOLUTION. It is specified that the logistician must take out a subscription with FACILECOMM to be able to connect to the CLIENT’s subscription. If the CLIENT gives access to the SHIPPINGBO SOLUTION, FACILECOMM will contact the logistician to offer him a subscription. If it refuses, it is specified that FACILECOMM may request a catch-up on the label fees and the payment to the CLIENT of an additional subscription and, if necessary, proceed to the termination of this CONTRACT.

6.6. Support service – Assistance

FACILECOMM also provides the CLIENT with a general assistance service accessible through the SHIPPINGBO SOLUTION, allowing the opening of tickets.      

Unless otherwise stipulated in the OFFER, and in particular according to the levels of support subscribed, the CLIENT is informed that the basic assistance service included in the provision of the SERVICES includes only support, within the limits of reasonable requests, and limited:  

–        The reporting of ANOMALIES (in accordance with Article 6.4. “Maintenance”);

–     To requests for information on the use of the SHIPPINGBO SOLUTION (excluding any specific development, connection to THIRD-PARTY SERVICES or functionality of the CLIENT).

In addition to the basic assistance services, the CLIENT can contact FACILECOMM to obtain additional personalized services.

Any request for intervention relating to the carrying out of specific developments, the installation of connectors with THIRD-PARTY SERVICES, the commissioning in the CLIENT ENVIRONMENT or the modification of the configuration or configuration of the SHIPPINGBO SOLUTION is likely to be the subject of an additional quote.

 It is specified that the purpose of the support is not to replace and/or constitute training for the CLIENT’s users.   

The training service offered by FACILECOMM is a separate service, subject to a separate pricing from the provision of the SHIPPINGBO SOLUTION.    

Any intervention related to a breakdown or malfunction resulting from improper use by the CLIENT of the SHIPPINGBO SOLUTION may also give rise to specific invoicing.

6.7. Training Services

Two types of training are offered by FACILECOMM: (i) CLIENT on-site training and (ii) distance learning.

Regardless of its duty to advise, FACILECOMM may offer initial training to the CLIENT and its staff or users on the utilization of the SHIPPINGBO SOLUTION, as per the specific terms agreed upon between them. This is subject to the completion of a specific quotation, as applicable.

The duration and content of the initial training will be determined according to the functionalities chosen by the CLIENT, its activity, and its configuration. The training will take place at a time and place agreed upon by the PARTIES.  

Training in the form of a tutorial can also be considered.

6.8. Security

FACILECOMM is committed to making its best efforts to:

–        Ensure the logical and physical security of its information systems; 

–        Minimize the risk of a security breach or breach.

In any case, it is expressly agreed between the PARTIES that the CLIENT is solely responsible for the security of its CLIENT ENVIRONMENT, or the THIRD-PARTY SERVICES connected and/or used in connection with the SHIPPINGBO SOLUTION.  

ARTICLE 7. LIABILITY

7.1. General Principles

It is expressly agreed that the CLIENT remains solely responsible for the processing and dispatch of its ORDERS.

FACILECOMM does not intervene in any way in the contractual relations established between the CLIENT and its buyers on the one hand and the CLIENT and the PARTNERS on the other hand. 

The role of FACILECOMM is limited to providing a software solution, the SHIPPINGBO SOLUTION, allowing the CLIENT to organize and manage its ORDERS, if necessary, in conjunction with the PARTNERS.

Under no circumstances is the purpose of the SHIPPINGBO SOLUTION to:

–        Putting the CLIENT in contact with other parties (end buyers, PARTNERS, etc.), or any intermediation service, with a view to the sale of products or the provision of logistics services or the conclusion of any contract in general; or

 – The performance of logistics or transport sales or services by FACILECOMM on behalf of or at the request of the CLIENT.

7.2. FACILECOMM’S LIABILITY

In the event of a breach, the CLIENT may incur the liability of FACILECOMM as soon as it has previously notified by registered letter with acknowledgment of receipt of the alleged breach and FACILECOMM has not responded within thirty (30) days of receipt of this formal notice.

In any case, it is recalled that the liability of FACILECOMM can only be sought in the event of proven fault.

FACILECOMM shall be automatically released from any commitment and liability in the event of:

• Force majeure in accordance with Article 8 “Force Majeure” below;

• Non-performance, poor performance or breach by the CLIENT of its obligations under this CONTRACT (including any Schedule), or any breach or infringement of applicable regulations by the CLIENT (including by the users under its responsibility);

• Abnormal use, illicit exploitation or misuse of the SHIPPINGBO SOLUTION by the CLIENT, including a failure to configure the same or failure to comply with the instructions provided for in the DOCUMENTATION;

• The use, or the attempt by the CLIENT to use, the functionalities of the SHIPPINGBO SOLUTION to carry out activities related to logistics, the transport of goods or trade in general subject to specific regulations (and in particular declarations, authorisations or any type of approval) when it is not itself in compliance with the regulations applicable to said activities;

• Inability to temporarily access the SHIPPINGBO SOLUTION following maintenance operations or any interruption beyond the control of FACILECOMM, resulting in particular from unavailability or malfunctions of internet networks or THIRD-PARTY SERVICES;  

• Virus attacks not attributable to a failure to secure the SHIPPINGBO SOLUTION in view of the state of the art;

• Inadequacy of the SHIPPINGBO SOLUTION with the CLIENT ENVIRONMENT;

• The use of THIRD-PARTY SERVICES or third-party software or systems generally.

Nor shall FACILECOMM be held liable for any decision, action or omission of the CLIENT taken based on the latter’s viewing or interpretation of third-party data included in the SHIPPINGBO SOLUTION or the THIRD-PARTY SERVICES.

Moreover, due to the very nature of the Internet network (interconnection of a multitude of independent players), no one can guarantee the overall functioning of the networks from end to end.

FACILECOMM cannot therefore be held liable for any damage for which it is not directly responsible.

Under no circumstances may FACILECOMM be held liable, regardless of the type of action brought, for indirect damage of any kind, for example, and without the list being exhaustive, any financial or commercial loss, loss of profit, commercial disturbance, loss of profit, loss of profit, damage to a third party, or action brought by a third party against the CLIENT as well as their consequences,  related to these Terms and Conditions or their performance.

The CLIENT is solely liable for any damage, direct or indirect, material or immaterial caused by him or one of his employees to FACILECOMM or to third parties as a result of his use of the SERVICES, and in particular in respect of the DATA that FACILECOMM hosts as part of the SHIPPINGBO SOLUTION.

The CLIENT expressly acknowledges that FACILECOMM exclusively plays the role of host of its DATA and is in no way required to know, control or modify the DATA.

In any event, it is expressly agreed between the PARTIES that if FACILECOMM’s liability is retained in the context of the execution of this CONTRACT, it will be limited to all claims and all damages combined, to the sums paid by the CLIENT hereunder over the last six (6) months.

It is expressly agreed between the PARTIES that the stipulations of this clause will continue to apply even in the event of the termination of these terms and conditions established by a court decision that has become final.

These provisions establish an allocation of risks between FACILECOMM and the CLIENT. The price of the SERVICES reflects this allocation as well as the limitation of liability described.

ARTICLE 8.  FORCE MAJEURE

FACILECOMM will not be deemed to have breached its obligations if it is prevented from performing all or part of them following a case of force majeure within the meaning of Article 1218 of the French Civil Code and the associated case law.

FACILECOMM undertakes to inform the CLIENT of the occurrence of such a situation as soon as possible as soon as it becomes aware of it.

FACILECOMM will make its best efforts to limit the effects of the force majeure event and find any appropriate solution to resume the performance of its obligations as soon as possible.

If the performance of one or more of FACILECOMM’s obligations is postponed due to the occurrence of a force majeure event, the performance of the CONTRACT will be suspended until the said event disappears.

However, if the force majeure event lasts beyond one (1) month, each of the PARTIES shall have the right to terminate the CONTRACT by operation of law by sending a registered letter with acknowledgment of receipt with immediate effect.

 ARTICLE 9.  NON-COMPETITION CLAUSE

During the entire term of this CONTRACT and for a period of three (3) years after the end of the CONTRACT, whatever the cause, the CLIENT shall refrain from designing, developing and/or marketing software identical or similar to all or part of the SHIPPINGBO SOLUTION and from thereby taking unfair advantage of its knowledge of FACILECOMM’s activity and the operation of the SHIPPINGBO SOLUTION to compete with it.

In the event of non-compliance with this clause, the CLIENT undertakes to pay FACILECOMM, as a penalty clause, the sum of 450,000 euros, without prejudice to any other rights and remedies of FACILECOMM.

ARTICLE 10. INTELLECTUAL PROPERTY

Each of the PARTIES retains the rights to its knowledge, content, trademarks, logos, data, designs and models, patents, creations, software solutions, or any other element likely to be covered by intellectual property rights, which it held prior to the conclusion hereof, or which it develops separately, in complete independence of this CONTRACT, including during the duration of the latter.

In any case, under no circumstances shall this CONTRACT be interpreted as having as its purpose any transfer of ownership over the contents and creations of each of the PARTIES.

10.1. Property of FACILECOMM

The CLIENT acknowledges that the SITE, the SHIPPINGBO SOLUTION and the SERVICES in general, as well as the technology and content related thereto, are the exclusive property of FACILECOMM.

Likewise, unless otherwise agreed in writing between the PARTIES, FACILECOMM is the sole holder of the rights to any specific developments it has carried out for the CLIENT, including any connector with the THIRD-PARTY SERVICES, the CLIENT only benefiting from a non-transferable and non-exclusive right of use.

The trademarks, logos, slogans, graphics, photographs, animations, videos and texts contained on the SITE and the ACCOUNT are also the exclusive property of FACILECOMM or its licensors and/or partners and/or subcontractors and may therefore not be reproduced, used or represented without prior express authorization, under penalty of legal proceedings.

The CLIENT shall not:

1. To use the names FACILECOMM or SHIPPINGBO in its campaigns without the prior written consent of FACILECOMM;
2. To maintain any confusion with FACILECOMM in the context of its advertising campaigns and/or promotional announcements;
3. To adapt, correct, modify, or reproduce in whole or in part the SITE, the SHIPPINGBO SOLUTION and/or the SERVICES in general made available herein.

10.2. Property of the CLIENT

The CLIENT retains full ownership of the DATA that it provides on the SITE or that it integrates into the SOLUTION, as well as any other element relating to its activity and made available to FACILECOMM in the context of the performance of the SERVICES or the use of the SOLUTION.

However, the CLIENT grants FACILECOMM a non-exclusive license to use, without limitation of territory, and to reproduce the DATA, allowing FACILECOMM to host, copy, or display them, for the purposes of providing and executing the SHIPPINGBO SOLUTION, as well as for carrying out specific developments if necessary.

The rights listed in this article may be exercised on all or part of the DATA as well as on any derivative creation incorporating them in whole or in part.

Thus, all statistical and reporting data generated in the context of the use of the SERVICES and to which the CLIENT has access via his ACCOUNT remains his property.

The CLIENT expressly grants to FACILECOMM:

• A right of access and consultation of this statistical data to provide the CLIENT with the appropriate support.
• A right to exploit, for the sole purpose.

– internal evaluation of the evolution of the CLIENT’s performance in the context of the use of the SOLUTION

– continuous improvement of the SHIPPINGBO SOLUTION and its functionalities

– to create global statistics of the SITE or the SHIPPINGBO SOLUTION, by combining the statistical data of the CLIENT with the data of other clients. In this case, only aggregated statistical data may be disseminated to the public by FACILECOMM.

10.3. License to use

By this CONTRACT, FACILECOMM grants a non-exclusive license to use the SHIPPINGBO SOLUTION, the SITE, the technology, and the related contents, including any specific developments, if any, necessary for the use of the SERVICES in accordance with these Terms and Conditions to which FACILECOMM (or third-party licensors) holds rights.

This license allows the CLIENT to use the SHIPPINGBO SOLUTION in accordance with its purpose and for its own needs, i.e. for the sole purpose of logistical management of ORDERS, their storage and/or transport, or, with specific authorization from FACILECOMM, to develop its own THIRD-PARTY SERVICES.   

It is specified that this user license is granted in return for the payment by the CLIENT of the sums corresponding to the SERVICES and may be suspended in the event of non-payment, in accordance with the terms and conditions set out in Article 15 “Suspension – Termination”.

This license is granted for the entire term of this CONTRACT, worldwide, and therefore until terminated herein, for any reason whatsoever.  It is specified that this license is non-transferable and cannot be considered as a transfer of ownership of any kind in favor of the CLIENT.

Under no circumstances is the CLIENT authorised to give access to the SHIPPINGBO SOLUTION through its ACCOUNT to users other than its staff or direct representatives.     

The latter is therefore prohibited from assigning, transferring, lending, sub-licensing, delegating, or granting to a third party, free of charge or for a fee, directly or indirectly, any right of use, representation or reproduction that would be conferred by this CONTRACT without the prior written consent of FACILECOMM. In addition, it is reminded that any use that does not comply with the license is subject to legal proceedings.

As such, the CLIENT undertakes to take all necessary measures, in particular security, regarding its staff and any third party to ensure compliance with FACILECOMM’s intellectual property rights.

In any case, the CLIENT shall not:

1. Attempt to copy, modify, reproduce, create any derivative work, alter, mirror, republish, download, display, transmit or distribute all or any part of the components of the SITE and/or the SHIPPINGBO SOLUTION objects of the SERVICES in any form, on any medium or through any means whatsoever;
2. Attempt to decompile, disassemble, reverse engineer or otherwise make understandable all or any part of the SHIPPINGBO SOLUTION or the SITE;
3. To access all or part of the SHIPPINGBO SOLUTION for the purpose of designing a competing solution;
4. To access the SHIPPINGBO SOLUTION in the form of source code or unlocked coding with comments;
5. Attempt in any way whatsoever to remove, circumvent any Technical Protection Measure (“TPM”), or use or manufacture for sale or rental, import, distribute, sell or rent, offer for sale or lease, promote sale or lease or possess for private or commercial use any means used to facilitate the unauthorized removal or circumvention of TPMs;
6. To use the SHIPPINGBO SOLUTION to provide services to third parties (other than the performance of its usual distribution, e-commerce or logistics activity) or to sublicense, sell, rent, assign, assign, distribute, display, disclose, commercially exploit or otherwise make available the SHIPPINGBO SOLUTION to any third party.

In addition, the CLIENT undertakes to do everything reasonably possible to prevent any unauthorized access or use of the SITE, the SHIPPINGBO SOLUTION and, in the event of such unauthorized access or use, to notify FACILECOMM as soon as possible, in accordance with Article 4 « How to access the SHIPPINGBO SOLUTION ».

ARTICLE 11.  DATA PRIVACY PROTECTION

Each of the PARTIES guarantees the other PARTY compliance with the legal and regulatory obligations incumbent on it according to its role with respect to the protection of personal data.

Under Article 11 « Data Privacy Protection », « APPLICABLE REGULATIONS » refers to any current law or regulation applicable to the processing of personal data carried out in the context of the provision of SERVICES. This includes Regulation (EU) 2019/679 on the protection of personal data (« GDPR »), French Law No. 78-17 known as the ‘Data Protection Act’ (‘LIL’), and any law, regulation, directive, or regulatory act aimed at complementing and/or replacing them, as well as relevant decisions, recommendations, or guidelines adopted by competent authorities.

11.1. Regarding the treatments carried out by FACILECOMM

As part of the SHIPPINGBO SOLUTION, FACILECOMM collects personal data when the CLIENT registers on the SITE.

This DATA concerns the CLIENT and/or, where applicable, its representatives, employees or any person using the SHIPPINGBO SOLUTION on its behalf.

These DATA are processed exclusively for the purpose of managing its activity by FACILECOMM and the provision of SERVICES, and to manage its contractual relationship with the CLIENT, for example for the sending of communications, information on the SHIPPINGBO SOLUTION or invoices; provide support or assistance to the CLIENT and its users; manage any disputes or litigation; or comply with its legal obligations.

In this context, FACILECOMM undertakes not to keep the DATA concerned longer than necessary for the purposes pursued, and in particular:

–        For the entire duration of the CONTRACT for the purpose of providing the SERVICES, then for a period of three (3) years for communication or commercial prospecting purposes;

 – For the entire applicable legal limitation period, for the DATA necessary for the protection of FACILECOMM’s interests in the event of a dispute or litigation;

 – For any period made mandatory by the regulations in force, for the DATA concerned by these obligations.

The CLIENT, and all natural persons concerned by such processing, will benefit from the rights provided for by the APPLICABLE REGULATIONS, including the rights of access, rectification, updating, portability, or deletion of the DATA, as well as the rights to request the limitation of the processing or to oppose it, in accordance with the cases provided for by the APPLICABLE REGULATIONS.

These rights may be exercised in accordance with the law by e-mail to the address contact@facilecomm.com or by post to the address of the registered office of FACILECOMM, justifying their identity and a legitimate reason when this is made enforceable by the APPLICABLE REGULATIONS.

The CLIENT may also lodge a complaint with the supervisory authorities and with the CNIL (French National Commission on Informatics and Liberty) (https://www.cnil.fr/fr/plaintes).

For more information, the CLIENT and its users can refer to the Privacy Policy available on the SITE.

11.2. Concerning the processing carried out by the CLIENT

In the event of processing of personal data by the CLIENT from the SERVICES, the latter guarantees that it processes such data in compliance with the rights and obligations provided for by the APPLICABLE REGULATIONS.

Regarding this processing, the CLIENT will have the role of data controller or, in some cases, data processor, when processing this data on behalf of one of its clients. FACILECOMM will have the status of a data processor within the meaning of Article 28 of the GDPR (or a subsequent processor if the CLIENT acts as a data processor).

As such, the PARTIES have entered into a dedicated data protection agreement organizing their roles and responsibilities, included hereunder.

ARTICLE 12. CONFIDENTIALITY

Each PARTY undertakes to use the CONFIDENTIAL INFORMATION, directly or indirectly, in whole or in part, only for the strict performance of this CONTRACT.

Each PARTY acknowledges in advance that any disclosure would seriously prejudice the interests of the PARTY that is the victim of the disclosure. Consequently, the latter will be entitled to take legal action against the other PARTY, all co-perpetrators, or accomplices and to claim damages if these commitments have not been kept, for whatever reason.

The confidentiality obligations set forth in this clause do not apply to all or any part of the CONFIDENTIAL INFORMATION to the extent that:

• They are or have been made public other than as a result of any act or omission of the receiving PARTY;
• They were legally owned by the other PARTY prior to their disclosure;
• It has been lawfully disclosed to the receiving PARTY by a third party without restriction on disclosure;
• The receiving PARTY is subject to a legal obligation of disclosure by any court of competent jurisdiction, authority, or administration. In this case, the PARTY concerned undertakes to notify the disclosing PARTY of this obligation in advance, unless prohibited by applicable laws or regulations.

In accordance with the provisions applicable to trade secrets, this confidentiality clause shall be maintained at the expiration of the CONTRACT until the CONFIDENTIAL INFORMATION enters the public domain other than through a breach by the receiving PARTY. For CONFIDENTIAL INFORMATION that is not a trade secret, the PARTIES undertake to maintain their confidentiality commitments for five (5) years after the end of the CONTRACT, regardless of the reason.

ARTICLE 13. FINANCIAL TERMS – PAYMENT FOR SERVICES

The CLIENT is required to pay the invoices net, without discount, on the first day of each month of registration.

Unless otherwise agreed between the PARTIES, the SERVICES will be paid monthly by the CLIENT according to the means of payment offered on the SITE.  

In the event that the automatic debiting of a bank account has been made impossible due to insufficient funds or for any other reason, the CLIENT must pay his monthly invoice by credit card.

At the end of the initial commitment period, FACILECOMM reserves the right to modify the prices at any time. These changes will be brought to the attention of the CLIENT by any means within thirty (30) days before they come into effect.

The CLIENT may terminate the CONTRACT free of charge, by sending a registered letter with acknowledgment of receipt within thirty (30) days of notification of the modification of the pricing by FACILECOMM and under the conditions defined in Article 15 “Suspension – Termination” of these General Terms of Services.

In the event that an invoice is not paid within the agreed deadlines, FACILECOMM reserves the right to suspend access to its SERVICES, in accordance with the stipulations of Article 15 « Suspension – Termination », without this suspension being considered as a termination.

In the event of non-payment by the CLIENT, FACILECOMM may apply late payment penalties calculated as follows:

Late payment penalties = (amount of the invoice including value added tax – VAT) X (Applicable Legal Rate) x (number of days late / 365).

In accordance with the provisions of the French Commercial Code, the Applicable Legal Rate means the interest rate applied by the European Central Bank to its most recent refinancing operation plus 10 percentage points. Late payment penalties are due the day after the settlement date without the need for a reminder. The CLIENT in the event of late payment is automatically liable to FACILECOMM for a lump sum indemnity for collection costs in the amount of forty (40) euros.

When payment terms are agreed, such as payment in instalments, failure to comply with a single payment term renders the entire claim payable. It entails, without payment of compensation of any kind whatsoever, the immediate suspension of the SERVICES in progress.

Any rejections of direct debits will be subject to a re-invoicing by FACILECOMM to the CLIENT of the bank charges incurred.

It is also reminded that termination does not release the CLIENT from its obligations, in particular financial obligations, established prior to them.

ARTICLE 14. DURATION

The CONTRACT may be concluded (i) without a commitment period or (ii) for a minimum commitment period of twelve (12) months.

In this case, at the request of the CLIENT and subject to the express agreement of FACILECOMM, a longer commitment period may be subscribed (eighteen (18) or twenty-four (24) months).

At the end of this initial period of commitment, the CONTRACT is renewed for an indefinite period, unless expressly terminated by one of the PARTIES in accordance with the terms and conditions set out in the Article 15 « Suspension – Termination » below.

ARTICLE 15. SUSPENSION – TERMINATION

15.1. Suspension

FACILECOMM may suspend the CONTRACT by operation of law, without compensation to the CLIENT, and without prior formal notice, in the following cases:

–        In the event of a lack of cooperation (failure to provide the requested information, in particular) and/or disloyalty noted by FACILECOMM, and if there is an urgent need to put an end to the actions concerned;

–        When the actions of the CLIENT endanger, in any way whatsoever, the operation of the SHIPPINGBO SOLUTION and the SERVICES;

–        In the event of non-payment by the CLIENT;

–        In the event of a breach of the CLIENT’s commitments under Articles 10 « Intellectual Property », 11 « Data Privacy Protection » and 12 « Confidentiality ».

This decision shall be brought to the attention of the CLIENT by registered letter with acknowledgment of receipt, specifying the reasons for the suspension, and equivalent to a formal notice to comply within thirty (30) days.

In the event of failure to comply within this period, FACILECOMM may terminate the CONTRACT by registered letter with acknowledgment of receipt, with immediate effect upon receipt.

15.2. Termination

•  For non-compliance

If one of the PARTIES fails to comply with at least one of its obligations hereunder, this CONTRACT may be terminated by the other PARTY subject to prior formal notice, sent by registered letter with acknowledgment of receipt or by email, to comply within thirty (30) days.

In the event of failure to comply within the prescribed period, the PARTY affected by the breach may notify the immediate termination of the CONTRACT.

It is specified that to terminate the CONTRACT, the CLIENT may send his request by email to the following address: compliance@shippingbo.com 

In the event of failure to comply with its payment obligation or non-compliance with the GDPR policy in force by the CLIENT, FACILECOMM reserves the right to cut off access to the CLIENT’s ACCOUNT at any time, after having previously made reminders.

• For convenience

Contracts entered into for an initial commitment period

Once the initial commitment period has passed, in accordance with Article 14 “Duration”, each PARTY may terminate the CONTRACT at any time, by email or by LRAR subject to a minimum notice period of fifteen (15) days before the date of the next invoice. 

To terminate this CONTRACT for convenience, the CLIENT must notify FACILECOMM of its decision by email to compliance@shippingbo.com or by registered letter with acknowledgment of receipt at least fifteen (15) days before the first day of the following month. Any late cancellation in relation to this period will result in a new month’s subscription being charged.

In the event of early termination before the end of the commitment, the CLIENT will be liable for past and future invoices until the end of the commitment period.

Contracts entered into without an initial commitment period

Each PARTY may terminate the CONTRACT at any time, by email or by LRAR, subject to a minimum of fifteen (15) days’ notice prior to the date of the next invoice.

To terminate this CONTRACT for convenience, the CLIENT must notify FACILECOMM of its decision by email to compliance@shippingbo.com or by registered letter with acknowledgment of receipt at least fifteen (15) days before the first day of the following month. Any late cancellation in relation to this period will result in the billing of a new month of subscription.

•  Other reasons

FACILECOMM may also terminate the CONTRACT by operation of law in the event of receivership or judicial liquidation of the CLIENT, takeover of the CLIENT by a third party, transfer of the CLIENT’s activity to a third party.

The PARTIES may also terminate the CONTRACT in the event of disagreement on the modifications to the CONTRACT, in accordance with Article 3 « Modifications ».  

Specific cases of termination may also be provided for in certain offers agreed between the PARTIES.  

15.3.  Consequences of termination

Termination of the CONTRACT shall entail without delay the termination of the rights of use granted to the CLIENT hereunder as well as the revocation of the access to the SHIPPINGBO SOLUTION granted to the CLIENT.

The CLIENT will therefore no longer be able, as of this termination, to have access to his ACCOUNT or benefit from the SERVICES.

The termination shall have no effect for the payments due by the CLIENT in respect of the SERVICES performed.

In the event of termination during the month, the full amount due for the current month will be invoiced and due by the CLIENT.

The stipulations hereof intending, by their nature, to remain in force after the end of the CONTRACT, and in particular articles 7 « Liability », 10 « Intellectual Property », 11 « Data Privacy Protection », 12 « Confidentiality », 15 « Suspension – Termination », and 20 « Applicable law – Jurisdiction » remain in force for the period expressly provided for or, failing that, a period of five (5) after the end of the CONTRACT,  unless otherwise required by law or regulation.

ARTICLE 16.  REVERSIBILITY

In the event of termination of the contractual relationship, whatever the cause, FACILECOMM may, upon prior request, return to the CLIENT all the DATA belonging to it contained in the SHIPPINGBO SOLUTION in an intelligible form and within thirty (30) days.

This commitment is conditional on the CLIENT being up to date with his payments.

However, it is specified that if the CLIENT fails to express its desire to obtain this restitution within thirty (30) days following the end of the CONTRACT, FACILECOMM will have the possibility to proceed with the destruction of this data, files, and documents. As a result, FACILECOMM will no longer be able to return the data to the CLIENT.

Once the DATA has been returned, FACILECOMM will proceed to destroy it.

By way of exception, FACILECOMM may retain certain DATA:

• When required by the legal obligations applicable to it. For example, accounting documents and supporting documents are kept for ten (10) years from the date of issue, in accordance with Article L. 123-22 of the French Commercial Code;
• For preventing any disputes or pre-litigation, between FACILECOMM and the CLIENT, for the entire applicable limitation period.

If necessary, before the deletion of the ACCOUNT and at the request of the CLIENT, FACILECOMM may also offer reversibility services allowing the takeover of the SERVICES by a third party (respecting the obligations relating to data confidentiality) or the CLIENT himself. These services will be subject to a specific quote.

ARTICLE 17. GUARANTEES

17.1. General guarantees

Each PARTY undertakes and warrants to the other PARTY that:

• That it has the power and authority to enter this CONTRACT, and that it will ensure and maintain, during the relationship, all possible authorizations necessary for the performance of its obligations,
• That it holds, or has been granted the rights allowing it to use for the purposes of this CONTRACT, all the intellectual property rights necessary to comply with its obligations,
• That it has taken out an insurance contract with a company known to be solvent, covering its activities hereunder and that, at the request of the other PARTY, it may provide proof of such subscription, and of the maintenance of this contract, for the duration of the CONTRACT,
• That it will perform its obligations under this CONTRACT in accordance with all applicable laws and with reasonable care and skill,
• That it will not do or omit to do anything that may result in the other PARTY violating any applicable law or regulation,
• That it will not disparage the other PARTY.

The CLIENT accepts that the SHIPPINGBO SOLUTION has not been developed with a view to satisfying only its individual requirements.

As such, the CLIENT, who is an informed professional of the Internet, IT and/or electronic communication tools, is required to ensure that the SERVICES and functionalities of the SHIPPINGBO SOLUTION comply with its needs, imperatives, and constraints.

In addition, FACILECOMM draws the attention of the CLIENT to the fact that they will have to proceed alone and autonomously, or through the intermediary of the PARTNERS, to proceed with the preparation and dispatch of the ORDERS.

Finally, FACILECOMM does not in any way guarantee the CLIENT a commercial success or profits related to the use of the SHIPPINGBO SOLUTION.

17.2. Guarantees by the CLIENT

The CLIENT warrants to FACILECOMM that it has all rights and authorizations to use the SERVICES lawfully and in accordance with these Terms and Conditions – for example, that it has all ownership rights, including intellectual property, or that it has been granted a valid license, for the sale of its products, or on the DATA.

In addition, when the exercise of its professional activities by the CLIENT requires declarations, authorisations, certifications, authorisations or approvals of any kind, the CLIENT guarantees FACILECOMM that it conducts its operations in accordance with the applicable regulations, that it maintains its authorisations and declarations throughout the duration of the CONTRACT, and that it is up to date with all its reporting obligations,  legal, fiscal and social issues.

In the event of a claim, complaint, or action of any kind brought against FACILECOMM because of the CLIENT’s DATA, products or activities carried out through the SHIPPINGBO SOLUTION, the CLIENT undertakes to assume all the consequences, including, but not limited to, financial (such as any damages, procedural costs, attorneys’ fees, etc.).  that would result from any such claim or action.

17.3. Eviction Guarantee

FACILECOMM guarantees the CLIENT a peaceful enjoyment in the use of the SERVICES, this guarantee being enforceable only for the rights of use conferred pursuant hereto.

In addition, in the event of a claim or legal action by a third party alleging that the use of the SERVICES would constitute a violation of its intellectual property rights, FACILECOMM undertakes to pay directly to the author of the claim all sums that may be demanded from the CLIENT and to intervene voluntarily, if necessary, in all proceedings initiated against the CLIENT.

The guarantee set out in the preceding paragraph shall be understood to be provided that:

1. The claim or action is not the consequence of a breach by the CLIENT of its contractual commitments;
2. The CLIENT shall send to FACILECOMM as soon as possible, a written notice regarding the claim or action, detailing its nature;
3. The CLIENT assumes no responsibility, does not enter into any agreement or compromise regarding the claim or action without obtaining the prior written consent of FACILECOMM;
4. The CLIENT shall permit FACILECOMM and its professional advisers at reasonable intervals (subject to reasonable notice) access to its premises and to confer with its agents, directors, employees, representatives or advisers, and to inspect any related documents and to allow them to make copies thereof for the purpose of evaluating the claim or action;
5. The CLIENT shall take any reasonable action requested by FACILECOMM for the purpose of avoiding, contesting, compromising, or defending the claim or action.

17.4. THIRD-PARTY SERVICES

The CLIENT acknowledges that FACILECOMM has control and control only of its own SHIPPINGBO SOLUTION and SERVICES.  

In this respect, although the SHIPPINGBO SOLUTION allows and, in some cases, facilitates its interfacing with third-party IT tools or systems (CLIENT ENVIRONMENT, THIRD-PARTY SERVICES, etc.), through the development of connectors or APIs by FACILECOMM, or the recommendation on the SITE of THIRD-PARTY SERVICES, this economic and commercial model cannot be interpreted as constituting any guarantee whatsoever by FACILECOMM of these third-party creations.

Thus, under no circumstances does FACILECOMM guarantee the nature of the content or data integrated into these THIRD-PARTY SERVICES; their proper functioning; their lawfulness (including compliance with any applicable regulations); their level of IT security; or any products or services resulting from their use. These aspects are the sole responsibility of the third-party publisher, developer, or provider of the relevant THIRD-PARTY SERVICE.

In addition, FACILECOMM does not guarantee their compatibility with the SHIPPINGBO SOLUTION.

When FACILECOMM recommends THIRD-PARTY SERVICES to the CLIENT, whether indirectly, through recommendations or advertisements on the SITE or the SHIPPINGBO SOLUTION, or indirectly, through any personalized advice, it undertakes to specify the origin of these tools and to distinguish them from the functionalities developed and provided directly by FACILECOMM.

Any CLIENT using THIRD-PARTY SERVICES in the context of the SHIPPINGBO SOLUTION undertakes to comply with all rights (including any intellectual property rights) and conditions applicable to these THIRD-PARTY SERVICES (terms of use; licenses; etc.).

It acknowledges that, if any, it will have to agree to be bound by the additional specific terms applicable to THIRD PARTY SERVICES.  

In addition, the CLIENT undertakes to:

– Not to connect the SHIPPINGBO SOLUTION to THIRD-PARTY SERVICES whose terms of use or purposes would be incompatible with the CONTRACT;

 – Not to connect the SHIPPINGBO SOLUTION to THIRD-PARTY SERVICES, the use of which would be likely to undermine the security and/or proper functioning of the SHIPPINGBO SOLUTION.  

In addition, FACILECOMM has developed a public API portal for its ecosystem that would like to connect freely to the SHIPPINGBO SOLUTION. The API may be developed by a CLIENT directly or by a third party on behalf of one of the CLIENTS. This use will be governed by dedicated contractual conditions.

ARTICLE 18. OUTSOURCING

The PARTIES expressly agree that FACILECOMM may use external service providers or partners to perform all or part of the SERVICES.

In this case, the CLIENT will be informed, upon request, of the guarantees and level of service offered by the external service provider that will be enforceable against him. In any case, FACILECOMM will remain the CLIENT’s sole point of contact in the event of a call to subcontractors and will only be held liable if it is demonstrated that it has committed serious misconduct or that the external service provider has not complied with the guarantees and level of service offered.

In any case, the liability ceiling provided for in Article 7 « Liability » of these General Terms of Services will also apply in this case.

ARTICLE 19. GENERAL PROVISIONS

19.1. Independence of the PARTIES

These General Terms and Conditions of Services do not in any way confer on FACILECOMM or any of its team members the status of employee, mandatary, agent or representative of the CLIENT. The PARTIES further declare that these General Terms and Conditions of Services can in no way be considered as an act constituting a legal person or any legal entity, and that any form of « affectio societatis » is formally excluded from their relations.

19.2. Entire CONTRACT – Interpretation

No indication or document may give rise to obligations not included in these General Terms and Conditions of Services unless they have been the subject of a new agreement between the PARTIES.

The fact that one of the PARTIES has not required the application of any clause of these General Terms and Conditions of Services, whether permanently or temporarily, shall in no way be considered as a waiver of said clause.

In the event of a difficulty of interpretation between any of the titles appearing at the top of the clauses, and any of them, the titles will be declared non-existent.

If any of the stipulations of these General Terms of Services are null and void regarding a legislative or regulatory provision in force and/or a court decision having the force of res judicata, it will be deemed unwritten but will in no way affect the validity of the other clauses, which will remain fully applicable.

In case of any inconsistencies or discrepancies between the French version and any other language version, the Parties hereby acknowledge that the French version shall prevail over the foreign language version.

Here is the link to access the French General Terms of Service : 

19.3. Cession – Intuitu Personae

This CONTRACT has been concluded « intuitu personae » regarding the respective qualities of the PARTIES. Consequently, neither of the PARTIES is authorized to assign or transfer, for consideration or free of charge, all or part of its rights and obligations under this CONTRACT without the prior written consent of the other PARTY. The information of the other PARTY must be provided by LRAR or by e-mail with a proof such as a Kbis extract (French document that proves the identity and address of a legal entity) or other proof of the change of control. From these elements, FACILECOMM will be able to proceed with the account transfer.

In the event of a change of control by the CLIENT, they may inform FACILECOMM by e-mail at the following address: compliance@shippingbo.com.

As an exception to the foregoing, FACILECOMM is already authorized to assign any of its rights and/or obligations to any company that it controls or that controls it, the notion of “control” being understood as that defined in Article L. 233-3 of the French Commercial Code.

Any assignment by one of the PARTIES that does not comply with the conditions set out in this article shall be considered null and void.

19.4. Modes of evidence

By express agreement, the acceptance of these General Terms of Services entails the acceptance as proof of electronic communications (e-mails, etc.) exchanged between the PARTIES. The printing of such electronic communications shall be considered as an original authentic writing between the PARTIES.

ARTICLE 20. APPLICABLE LAW – JURISDICTION

These General Terms of Services are subject to French law.

In the event of a dispute arising between the PARTIES regarding the interpretation, execution or termination of these General Terms and Conditions of Services, the PARTIES shall endeavour to settle it amicably.

IN THE ABSENCE OF AN AMICABLE CONTRACT WITHIN ONE (1) MONTH OF THE REFERRAL TO ONE OF THE PARTIES, THE DISPUTE MAY BE SUBMITTED TO THE COURTS WITHIN THE JURISDICTION OF THE COURT OF APPEAL OF TOULOUSE, TO WHICH JURISDICTION IS EXPRESSLY ASSIGNED, NOTWITHSTANDING MULTIPLE DEFENDANTS OR THIRD-PARTY CLAIMS, INCLUDING FOR EMERGENCY PROCEEDINGS OR PRECAUTIONARY PROCEEDINGS, IN SUMMARY PROCEEDINGS OR BY APPLICATION.