Effective date: August 13th 2019
The purpose of these general terms and conditions (hereinafter: the "General Terms and Conditions") is to define the terms and conditions under which the company TWICPICS, a French simplified joint stock company (“Société par Actions Simplifiée”), registered under number 840 701 767 with the Registry of Trade and Companies of Paris, whose head office is located at 10, rue de Penthièvre – 75008 Paris - FRANCE (hereinafter: “TWICPICS”), grants to its clients (hereinafter: the “Clients”) license for the use of the TwicPics Solution and provides the services in relation with this license (hereinafter: the “Services”).
The TwicPics Solution (hereinafter: the “Solution”) is an image processing software solution for developers, web agencies, software firms and/or companies which enables them to have their Web master images (hereinafter: the “Master Images”) resized, optimized and delivered to end-viewers in a device-adapted version.
The Solution can be made available to the Clients either on a Software-as-a-Service (SaaS), through the website www.twicpics.com (hereinafter: the “Website”). These General Terms and Conditions will prevail over any other general or special terms and conditions not expressly agreed by TWICPICS.
The contract documents are, in decreasing order of legal value:
In the event of any inconsistency between two contract documents, the document of superior rank in the contract hierarchy shall prevail.
The Client subscribes to the Solution and the Services in the form a subscription (hereinafter referred to as the "Subscription"), under one of the following offers (hereinafter referred to as the "Offers"):
(i) The Starter Offer, under which the Client is liable of fees based on a Pay-As-You-Use method calculated each month, and does not benefit support and availability Services;
(ii) The Business and Pro Offers, under which the Client pays a monthly fee for a fixed volume of Gigabit per month indicated on the Website, any use beyond this package being subject to additional fees, and benefits support and availability Services, as provided in the Service Level Agreement available on the Website hereinafter referred to as the “SLA”);
(iii) The Enterprise Offer, under which the Client subscribes to customized Services subject to prices mutually agreed between TWICPICS and the Client, through the submission of a specific quotation.
Subject to the specific terms of subscription to the Enterprise Offer, the Client can subscribe to the above-mentioned Offers when requesting the opening of an account on the Website (hereinafter: the “Account”).
To this end, the Client must complete the registration form available on the Website and provide all information that is marked as being required. Incomplete registrations shall not be validated.
The Client guarantees that all information provided in the registration form is exact, up to date and sincere and is in no way misleading or dishonest. It agrees to update this information in the event of any change, in order to continuously meet these criteria.
The Client is hereby informed and accepts that such information is valid as proof of its identity. Details entered by the Client shall be binding upon confirmation.
These General Terms and Conditions can be accepted by checking a checkbox in the registration form.
This acceptance can only be full and complete. Any qualified acceptance is considered as null and void. Any Client who does not accept to be bound by these General Terms and Conditions must not contract with TWICPICS.
Any Subscription takes effect upon the date of registration on the Website, subject to payment of the prices set forth in article “Financial Conditions”, for an initial period of 1 (one) month.
This initial period shall then be tacitly renewed for successive periods of 1 (one) month, unless written notice of termination is given either by TWICPICS or the Client, by any written means including email, no later than the last day of the current period.
Subscription cancellation is effective upon expiration of the last period. Any Subscription period started is due in full.
TWICPICS grants to the Client a limited, personal, non-transferable, non-sublicensable, non-exclusive license to use the Solution, in its existing version as of the date of its purchase, as well as in its successive versions as and when they are created, for the sole purposes of the processing of its master images (hereinafter: the “Master Images”).
The above-mentioned license is granted for the sole purposes of the use of the Solution, for the Client’s own needs.
The Client therefore undertakes:
not to reproduce, arrange, adapt all or part of the Solution;
not to proceed to any form of commercial exploitation of the Solution to third parties, nor to sublicense, assign, rent, loan, disclose, provide or otherwise transfer all or part of the Solution to any third party unless prior consent from or otherwise agreed with TWICPICS,
not to integrate the Solution in any computer system or any other technology solution other than those set out in these General Terms and Conditions, - not to proceed to the tele-transmission, the networking, including through internet, or the dissemination of the Solution in any other form without the prior consent of TWICPICS.
These licenses are granted to the Client subject to the effective and integral payment of the price provided in article “Financial Conditions”.
Upon registration on the Website, TWICPICS shall provide to the Client, by any written means including email, an URL-based image processing API (hereinafter: the “API”), that the Client must integrate in its IT system in order to activate the Solution. Upon request, TWICPICS can assist the Client in proceeding to this integration.
For purposes of this integration, the Client must take knowledge of the technical documentation of the API available on the Website.
The activation of the Solution automatically entails the opening of the Client's Account, giving access to its own personal space (hereinafter: the "Personal Space") which shall enable it to use the Solution.
Where appropriate, it is the Client’s responsibility to select the members of its personnel who shall have access to the Solution (hereinafter: the “Users”) and to provide them with connection ID and passwords.
It is also the sole responsibility of the Client to ensure that the Users do not allow any third party to access the Solution in their place or on their behalf, unless accepting full responsibility for the consequences. The Client expressly acknowledges that any use of the Solution under one of these connection ID shall be deemed to have been made by the relevant User.
TWICPICS warrants to the Client that (i) it has all rights and permissions needed for granting to the Client this license of use of the Solution, as set forth above, (ii) the Solution contains nothing that could fall under the laws and regulations relating to counterfeiting, unfair competition, and more generally, infringe the rights of third parties and (iii) it has not granted and shall not grant to any third party any assignment or license of use on the Solution that may prevent or hinder the performance of this agreement.
Depending on the Offer the Client has subscribed to, TWICPICS can provide corrective maintenance and technical support, pursuant to the provisions set forth in the SLA available on the Website.
During the term of the Subscription, TWICPICS shall make the Client benefit:
The nature and the frequency of these Updates and New Versions shall be left at TWICPICS’s own discretion.
The Client expressly agrees that the Updates shall be performed automatically and without prior notice.
TWICPICS shall give prior notice to the Client, through any appropriate means including email, of any New Version of the Solution at least 15 (fifteen) working days before its implementation.
TWICPICS undertakes to ensure, on a best effort basis, the hosting of the Solution and the data related to the Client’s Master Images (hereinafter: the “Client Data”) in compliance with trade practices and industry standards, through a professional hosting provider conducting its business activity in compliance with trade practices and industry standards.
In this context, TWICPICS undertakes to provide the Client with processing capacity for its use of the Solution, as well as to implement all necessary technical means, compliant with the state of the art, for purposes of ensuring the security of the access to the Solution.
Such measures shall involve the protection and the surveillance of TWICPICS’ infrastructures, control over physical and/or virtual access to said infrastructures, as well as the implementation of detection, prevention and recovery measures to protect servers from malevolent acts.
TWICPICS shall also take all appropriate precautions, with regards of the nature of Client Data and the risks incurred by automatic data processing required for the use of the Solution, in order to prevent the security of the Client Data, including to prevent them from being deformed or damaged, as well as to prevent their access by unauthorized third parties.
TWICPICS undertakes to ensure the quality, the permanence and the continuity of the access to the Solution and its use.
In that respect, TWICPICS shall endeavour its best efforts to guarantee an optimal availability of the Solution, pursuant to the provisions set forth in the SLA available on the Website.
Given the complexity of the internet, the disparity in capacity of the various subnetworks, the fluctuations in the number of users of the Solution at peak times, the various bottlenecks over which TWICPICS has no control, the liability of TWICPICS shall be limited to the running of its servers, the external limits of which are their points of connection.
TWICPICS shall not be held liable for (i) access speed to its servers, (ii) slowdowns that are external to its servers and (iii) faulty transmissions caused by technical malfunctions or failures of these networks.
Where necessary, TWICPICS reserves the right to carry out maintenance of the Solution. Such scheduled maintenance shall not interrupt the Services but may result in the limitation or the suspension of the back-office administration of the Services. In this event, TWICPICS shall inform the Client of these maintenance operations at least 5 (five) days hours in advance, by any appropriate means, including the publication of a message on the Website’s frontpage. Such Maintenance shall not interrupt the Services.
In the event of hardware or software malfunction in its equipment, TWICPICS shall devote all necessary means to restore access to the Solution in a timely manner and at its own expenses.
The Client hereby acknowledges and accepts that this service level guarantee does not cover any failure or interruption of the Solution the cause of which originates from telecommunications operators or Internet service providers.
In any event, it is hereby expressly agreed between TWICPICS and the Client that any failure to respect any undertaking set forth in this article shall not be considered as a breach of these General Terms and Conditions and that TWICPICS’ liability shall be limited under the conditions provided for in article "Liability and guarantee of TWICPICS" below.
Upon request of the Client, TWICPICS can provide additional services, among which:
The Client has the possibility to purchase at any time additional Services, which shall be subject to specific quotations to be validated through the Website.
In return for the grant of license and the provision of Services thereto, the Client agrees to pay to TWICPICS the prices indicated on the Website, depending on the Offers it has subscribed to.
Unless otherwise specified, these prices are indicated in euros and exclusive of tax.
These prices may be revised by TWICPICS at any time, in its sole discretion.
The Client will be informed of this revision by TWICPICS by any written mean (including email), at least 30 (thirty) days before the entry into force of the new prices.
When effective, the new prices apply upon the renewal of the Subscription.
The Client who does not accept the new prices must cancel its Subscription according to the provisions set out in article “Term”. The Client which continues to use the Services after the entry into force of the new prices shall be deemed to have accepted them.
Depending on the Offers, the prices of the Services are subject to monthly invoices that shall be sent by TWICPICS to the Client by any written means, including email, at the end of each month.
TWICPICS’ invoices shall be paid within a maximum of 30 (thirty) days from the date of invoicing.
The terms and schedule of payment of the prices are described on the Offers. The Client guarantees to TWICPICS that it has all the necessary authorizations to use the chosen payment mode.
Any payment delay of all or part of an amount at its due term, shall automatically entail, without prejudice to the provisions set out in article “Termination for breach”, and from the day following the payment date indicated in the invoices:
(i) Forfeiture of the term of all amounts payable by the Client, regardless of the terms of payment that had previously been agreed,
(ii) Immediate suspension of the Services until complete payment of all amounts due by the Client is received,
(iii) Invoicing by TWICPICS of a late payment interest at the rate of 3 (three) times the legal interest rate, calculated on the total of all due amount that were not paid on time, as well as a lump sum of 40 (forty) euros for costs recovery, without prejudice of any further compensation in the event effective recovery fees should be higher than this amount.
This rate shall be calculated based on periods of one calendar month. Any month started shall be counted as a whole month.
Without prejudice to other obligations provided for in these General Terms and Conditions, the Client undertakes to respect the following obligations.
11.1 The Client undertakes to provide TWICPICS with all documents, data and information necessary for the appropriate fulfilment of TWICPICS’s obligations under these General Terms and Conditions.
More generally, the Client undertakes to actively cooperate with TWICPICS for the proper performance of the Services and to keep TWICPICS informed with any difficulty in such performance.
11.2 The Client acknowledges having read on the Website and understood the characteristics and constraints of the Solution, of the entire range of the Services and the Solution in order to ensure that the Solution fulfils its expectations, needs and constraints.
11.3 The Client undertakes to comply with laws and regulations in force in its country, in particular with regards to the collection and distribution of data as pertaining to its industry, and not to violate public order or infringe the rights of any third party.
The Client is solely responsible for successfully completing all necessary administrative, tax and/or social formalities, as well as for the payment of contributions and taxes of all types concerning them that could result from the use of the Solution. TWICPICS shall in no case be held liable in this respect.
11.4 The Client expressly acknowledges that the implementation of the Solution, as well as any communication with TWICPICS including in the context of remote maintenance and support services, require that it should be connected to the internet and that it is solely responsible for such connection.
11.5 The Client is solely responsible for its use of the Solution, including its relations with its clients and/or users in this context.
In that respect, the Client is solely responsible for:
(i) The respect of its contractual commitments towards third parties
The Client shall be solely responsible for any difficulties or disputes with said third parties with regards to its use of the Solution and the Services.
(ii) the Master Images that are processed through the Solution
The Client guarantees TWICPICS that it has all the necessary rights and authorizations for their processing through the Solution and that the Master Images are legal, do not disrupt public order, are not contrary to accepted standards of public decency, do not infringe any third-party rights or legal provision and / or regulation, and, more generally, are in no way likely to expose TWICPICS’ civil or criminal liability.
(iii) The use of the Solution and the Services by its Users
The Client warrants that the Users shall not use the Solution for any illicit, non-compliant or unauthorised purposed, including against all laws and regulations in force. The Client is therefore solely responsible for setting up procedures aimed at preventing and redressing the commission of such acts.
The Client also undertakes to ensure that the Users take knowledge of the Acceptable Use Policy available on the Website and use the Services in compliance with this Acceptable Use Policy.
TWICPICS should not be responsible for any difficulty that may arise in this context.
11.6 The Client warrants that the Users shall not use the Solution for any illicit, non-compliant or unauthorised purposed, including against all laws and regulations in force. The Client is therefore solely responsible for setting up procedures aimed at preventing and redressing the commission of such acts.
11.7 The Client undertakes not to use any Content Diffusion Network or any other tools that may reduce the volume of delivered images, nor to use any means that may result in such volume reduction.
More generally, the Client undertakes not to interfere, either directly or indirectly, on the calculation of the volume of delivered images or the attached fees.
11.8 The Client must ensure that the management of Users, access privileges and more generally, system settings shall be conducted professionally and by “persons skilled in the art” who will be placed under the Client’s sole responsibility.
11.9 The Client is solely responsible for keeping the Users’ connection ID and password confidential.
The Client undertakes to contact TWICPICS without delay by email, in case it notices that the Users’ accounts have been used without its knowledge. The Client acknowledges TWICPICS’s right to take all measures it deems appropriate in such a case.
11.10 The Client agrees to defend, indemnify and hold TWICPICS harmless from and against any claims, demands, actions and/or grievances whatsoever, that TWICPICS could incur as a result of a breach by the Client of any one of its obligations or guarantees under these General Terms and Conditions.
12.1 TWICPICS shall fulfil its obligations under these General Terms and Conditions with diligence and in compliance with trade practice, specifying that it has an obligation to provide due care, but this without any obligation of result, this being expressly acknowledged and agreed by the Client.
12.2 TWICPICS shall provide adequate personnel and assume a commitment to advise, inform, recommend and warn with regard to the Client. In particular, TWICPICS undertakes to inform the Client of any difficulty that may occur with regards to the implementation or the use of the Solution.
Besides, TWICPICS undertakes to use all documents, data and information provided by the Client under this agreement for the sole purposes of performance of this agreement. It undertakes not to disclose or share these documents, data and information with any third party, unless expressly requested or authorized by the Client.
12.3 TWICPICS undertakes to set up adequate procedures in order to strengthen the security of the functioning of the Solution and to prevent any failure, intrusion or intrusion attempt by malicious third party.
However, TWICPICS should not be held responsible for any lack of vigilance or security by the Users in the preservation of their connection ID.
12.4 TWICPICS undertakes to keep strictly confidential all data collected through the Solution, including the Master Images, and to take all appropriate measures to ensure their security and confidentiality.
The Client expressly acknowledges having reviewed said measures and considering they are sufficient to enable TWICPICS to fulfil its abovementioned obligations of security and confidentiality.
12.5 TWICPICS certifies that it holds an insurance policy covering professional civil liability. TWICPICS agrees to maintain this insurance policy in force for as long as any of its obligations under these General Terms and Conditions are applicable.
12.6 TWICPICS shall not be held responsible if the Solution is ever momentarily difficult (or impossible) to access, the causes of these circumstances being outside TWICPICS's control, force majeure, or due to any disruption in the telecommunications network.
12.7 TWICPICS shall not be held liable for (i) any delay arising from late or defective transmission by the Client of data and information necessary for the implementation of the Solution or (ii) any damage which is not incurred by a malfunction of the Solution and more generally, all defects for which TWICPICS is not directly responsible.
12.8 In any event, TWICPICS shall not be held liable to the Client for the payment of damages of any kind, whether they be direct, materiel, commercial, financial or moral, for an amount exceeding the total amount invoiced by TWICPICS in the 12 (twelve) months prior to the time the alleged damages occurred. Even so, TWICPICS shall be held liable only in case the Project Holder issues a claim by sending a registered letter with acknowledgement of receipt within one month of such event.
The Services does not confer to the Client any intellectual property rights relating to the Solution, which remains entirely and exclusively the property of TWICPICS. The Client only has a license of use within the limits of the set forth herein.
Under no circumstances is the Client allowed to claim any intellectual property rights regarding any systems, software, structures, infrastructure, databases and content, used by TWICPICS in the Solution.
The Client therefore formally agrees to refrain from reproducing, modifying or reverse engineering all or part of the Solution, including its updates and/or revisions, in a temporary or permanent manner, through any means or in any form, imitating its concept or using it in any way that is not provided for herein.
Each of the parties undertakes to keep strictly confidential all documents and information of a legal, commercial, industrial, technical or financial nature sent by the other party during the provision of the Services.
This obligation shall not include documents and information:
(i) That the party who receives them already had previous knowledge of, (ii) That are already in the public sphere at the moment they are sent between parties or that enter the public sphere without breaching these General Terms and Conditions, (iii) That were lawfully received from a third party, (iv) Whose disclosure is required by legal authorities, through the application of laws and regulations or with a view to establishing the rights of a party under these General Terms and Conditions.
This confidentiality requirement covers all employees of both parties as well as their joint contractors.
It is binding for 5 (five) years following the end of business between the parties.
TWICPICS declares that it complies with fiscal and social legislation in force, to be up to date in its payment of social security contributions, and is able to provide evidence of compliance with the various applicable requirements in this regard, at the request of the Client. TWICPICS must obligatorily provide the Client, upon request and as often as necessary until the term of this agreement, with the following documents:
(i) an identification card proving registration in the trade register or a certificate of registration in the Trade and Companies Register dated less than three (3) months ("extrait K" or "KBIS", company registration) or equivalent for a foreign company, (ii) proof of delivery of Client's social security declarations, issued by the social security agency responsible for collecting social contributions, (iii) the sworn statement in which TWICPICS certifies that it has filed with the tax authorities on the date of the statement, all required tax returns, and that the work shall be conducted with employees that are legally employed with regard to the French Labour Code.
The Client expressly authorizes TWICPICS to use its name, its trademark and/or its logo as a customer reference, in any form and on any medium whatsoever, for the term of this agreement and beyond, for a period of 3 (three) years.
The Client expressly acknowledges and accepts that TWICPICS reserves the right to entrust subcontractors with associated services that are necessary for the fulfillment of its obligations under this agreement. For this purpose, TWICPICS undertakes to ensure that its subcontractors comply with all its obligations hereunder.
Upon termination of the Services for any reason whatsoever, the Client shall promptly cease to use the Solution.
It is the Client’s responsibility to recover all Client Data in relation with its use of the Solution and the Services, including the Master Images.
Upon request, TWICPICS may proceed to the recovery of these Client Data in a standard format, easily readable in a similar environment, in order to enable the Client, or any provider it may select, to resume the Services under normal operating conditions that ensure the continuity of said Services on the system that the Client will have selected (hereinafter referred to as the “Reversibility Service”).
The Reversibility Service shall be subject to a quotation from TWICPICS within a maximum of 10 (ten) days from the Client’s request.
TWICPICS shall provide the Reversibility Service within a maximum of 15 (fifteen) days from the acceptation of the quotation by the Client.
The Client undertakes to actively cooperate with TWICPICS in order to facilitate the recovering of the Client Data.
The Client expressly agrees that TWICPICS shall not be subject to any obligation of Client Data’s reversibility if the Client fails to pay all invoices issued by TWICPICS for the provision of the Services.
TWICPICS undertakes to respond to any request for assistance from the Client or the provider it has selected within a maximum of 2 (two) business days after the termination of the Services.
TWICPICS also undertakes to proceed to the destruction of these Client Data and not to retain any copy.
TWICPICS reserves the right to amend these General Terms and Conditions at any time. In this case, the amended General Terms and Conditions shall apply from the renewal of the Client’s Subscription.
The Client shall be informed of these amendments through any pertinent channel. If the Client does not agree with the amended General Terms and Conditions of Use must unsubscribe from the Services according to the provisions set out in article “Term”.
These General Terms and Conditions of Use are subject to French law and shall be interpreted and governed by such.
Any dispute that may arise in connection with their interpretation, their validity or their enforcement shall fall within the exclusive jurisdiction of the courts of Paris (France).