Terms & Conditions
Entry into force: October 1st 2018
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 master images (hereinafter: the “Master Images”) resized, optimized and delivered to end-viewers in a device-adapted version.
The Solution is made available to the Clients either on a Software-as-a-Service (SaaS), through the website www.twicpics.com (hereinafter: the “Website”), or, upon request, on premises via its installation on the Clients’ IT infrastructure.
These General Terms and Conditions will prevail over any other general or special terms and conditions not expressly agreed by TWICPICS. They form a contractual whole (hereinafter: the “Contract”) together with the Quotation mentioned in article “Contracting Process”, which binds the Clients.
In the case of any inconsistency between these General Terms and Conditions and the Quotation, the latter shall prevail.
2. Contracting process
2.1 Subscription of the Contract
TWICPICS submits to the Client a quotation (hereinafter: the “Quotation”) that the Client must expressly accept.
Unless otherwise agreed between TWICPICS and the Client, the Quotation is valid for 1 (one) month as of its date of issue. In the absence of an agreement from the Client being issued within that time limit, the Quotation shall be no longer valid.
The Contract comes into force when the Client sends back to TWICPICS by any written means, including by email at the email address indicated in the Quotation, a signed copy of the Quotation.
Any further purchase by the Client of additional services or any change in the scope of the license shall be subject to a supplementary or amending Quotation, which shall be validated under the same conditions as those mentioned hereabove.
2.2 Acceptance of the General Terms and Conditions
The acceptance of the Quotation entails full and complete acceptance of these General Terms and Conditions.
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.
The Client subscribes to the Solution and the Services in the form a subscription (hereinafter referred to as the "Subscription"), which takes effect upon validation of the Quotation, 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, at last 1 (one) month before the lapse of the current period.
Subscription cancellation is effective upon expiration of the last period. Any Subscription period started is due in full.
4. License for the use of the Solution
4.1 Scope of the License
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 their successive versions as and when they are created, for the sole purposes of the processing of its master images (hereinafter: the “Master Images”) and for the sole URL addresses indicated in the Quotation (hereinafter: the “URL Addresses”).
The above-mentioned license is granted for the sole purposes of the use of the Solution, for the Client’s own needs and for the sole URL Addresses.
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,
- not to sublicense, assign, rent, loan, disclose, provide or otherwise transfer all or part of the Solution to any third party,
- not to integrate the Solution in any computer system or any other technology solution other than those set out in the Contract,
- not to proceed to the teletransmission, 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”.
4.2 Implementation of the license
Upon reception of the signed Quotation, 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 incorporate in its IT system in order to activate the Solution for the relevant URL Addresses. Upon request, TWICPICS can proceed to this incorporation.
For purposes of its incorporation, 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 an account in the Client' name (hereinafter: the "Account"), giving access to its own personal space (hereinafter: the "Personal Space") which shall enable them 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.
4.3 Warranties on the Solution
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.
5. Maintenance and support services
5.1 Corrective and update maintenance
5.1.1 Corrective maintenance
The purpose of corrective maintenance is to correct, during the term of the licenses, all anomalies, being understood as a bug or a malfunction that may be found on the Solution and its New Versions (hereinafter referred to as the “Anomalies”), after the final acceptance or, in case of a remote access to the Solution, when the Users’ registration takes effect.
Anomalies are divided into three categories:
- “Critical Anomaly”: Anomaly that makes impossible the entire use of the Solution;
- “Major Anomaly”: Anomaly that significantly deteriorates the use of the Solution, in preventing the use some of its essential functionalities;
- “Minor Anomaly”: Anomaly that prevents the Client to use one or more non-essential functionalities of the Solution.
The Client shall notify TWICPICS with any Anomaly, by generating an incident ticket through the Solution. The Client shall attempt to give a maximum of useful information so that TWICPICS may characterise the incident.
TWICPICS shall then proceed to the diagnosis of the Anomaly, including by verifying whether its origin is the Solution or not, and, where appropriate, qualify the Anomaly as Critical, Major or Minor Anomaly. TWICPICS shall promptly inform the Client by email of the results of this diagnosis (hereinafter referred to as: the “Diagnosis Date”).
In case TWICPICS finds that the origin of the Anomaly is not the Solution, it shall inform the Client without delay. Otherwise, it shall commit the necessary resources to correct the Anomaly within the following time limits:
- Critical Anomaly: within [to be completed] hours from the Diagnosis Date;
- Major Anomaly: within [to be completed] working days from the Diagnosis Date;
- Minor Anomaly: within [to be completed] working days from the Diagnosis Date.
These time limits are counted down within working days, between 9 a.m. and 6 p.m. France CET. A working day means an uninterrupted period of 8 (eight) hours, from Monday to Friday, between 9 a.m. and 6 p.m France CET. Any time limit having started during this time range shall end at the same time on the last working day of this time limit.
In the event TWICPICS may not correct an Anomaly within the above-mentioned time limits, it undertakes to implement a work-around in order to enable the Client and the Users to use the Solution for the purposes intended. To this end, TWICPICS shall promptly notify the Client of the implementation schedule of this work-around.
TWICPICS undertakes to hold and keep up-to-date a corrective maintenance record in which shall be recorded all requests notified to TWICPICS and related to corrective maintenance.
TWICPICS shall deliver by email to the Client a report of its intervention. This report shall be recorded in the Maintenance Record. The date of this email shall constitute the end date of TWICPICS’s intervention.
In the absence of objections from the Client within five (5) calendar days from the date of this email, the information recorded in the Maintenance Record shall be deemed as validated.
5.1.2 Update maintenance
During the term of the licenses, TWICPICS shall make the Client benefit:
- all improvements of the functionalities of the Solution and all revisions aimed at implementing minor extensions of the Solution (hereinafter referred to as: the “Updates”);
- all changes of the Solution and the attached documentation by adding new functionalities (hereinafter referred to as: the “New Versions”).
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 [to be completed] working days before its implementation.
5.2 Technical support
Besides Anomalies and regarding any question in relation with the Solution, TWICPICS provides to the Users a technical support which consists in assistance and advice.
Such support can be provided through email, by sending a message to email@example.com.
According to the requirements, TWICPICS shall assess the time needed for answers, as well as their nature, and shall inform the Client of such assessment.
6. Hosting of the Solution
TWICPICS undertakes to ensure, on a best effort basis, the hosting of the Solution and the data related to the Client’s Maser 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 sufficient storage and 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.
7. Service level guarantees
TWICPICS undertakes to ensure the quality, the permanence and the continuity of the access to the Solution and its use.
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.
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.
8. Option for the installation of the Solution on premises
The Solution may optional be installed on the Client’s premises. The option by the Client for an installation of the Solution on its premises in specified in the Quotation.
8.1 Delivery schedule
The provision of the Solution is split into several distinct batches, as designated in the Quotation (hereinafter individually or collectively referred to as the "Batch(es)").
TWICPICS undertakes to make its best efforts to respect the indicative delivery schedules, Batch by Batch, as they are indicated in the Quotation, it being specified that such schedule is only indicative.
Any delay attributable to the Client shall put back accordingly the delivery dates mentioned above, on the initiative of TWICPICS, with the invitation to resolve matters within a period which shall not be less than eight (8) calendar days.
8.2 Reception of the Solution
The Solution shall be delivered and integrated in the Client’s servers Batch by Batch, as the Batches are completed. Such delivery and integration shall be completed by the signing of a delivery statement, dated and signed by TWICPICS and the Client.
From the date of signature of this statement, both parties shall proceed to the checking of the performance of the Solution, in order to ensure that the Solution technically and functionally meets the objectives indicated in the Quotation and can ensure a scheduled service under normal operating conditions (hereinafter referred to as the "Acceptance Process"), within a period of ten (10) working days.
Once these tests have been completed, in the absence of Anomalies or in case they agree so despite uncorrected Minor Anomalies, a statement of final acceptance shall be signed by TWICPICS and the Client within a period of ten (10) working days from the completion of the tests.
If Anomalies are found at the completion of these tests, the Client shall notify to TWICPICS a partial acceptance. TWICPICS shall proceed to the necessary corrections within a period of ten (10) working days from the date of notification of this partial acceptance. It is expressly understood by the Client that TWICPICS must correct the sole Anomalies that are specified in the partial acceptance statement.
The Client shall then proceed to a new Acceptance Process upon reception of the corrections. If the Client has new reservations at the completion of these new tests, TWICPICS shall proceed to the necessary corrections within a period of not more than ten (10) working days.
TWICPICS and the Client shall sign the final acceptance statement once the Anomalies have been corrected.
It is expressly agreed by the Client that the signature of the final acceptance statement constitutes acceptance by the Client of the Solution, as installed and integrated at the date of signature of this statement.
The final acceptance shall be deemed as tacitly acquired in case the Solution is used regularly by the Client beyond a period of 7 days from its delivery date.
8.3 Hosting, maintenance and support Services
The Client shall be solely responsible for the hosting of the Solution on its servers, as well as for the implementation of any procedure aimed at enhancing the security of the Solution’s performance and preventing all faults, intrusions or attempts of intrusion from malicious outsiders.
Maintenance and support Services shall be provided under the provisions set forth in article “Maintenance and support Services” either on the Client’s premises or remotely. In particular, Updates and New Versions of the Solution may be made available to the Client via Dockers.
To this end, the Client authorizes TWICPICS to remotely connect to its servers, through internet, and to remotely consult all information regarding the functioning of the Solution. The Client expressly acknowledges that failure to give remote access to the servers on which the Solution is installed shall prevent TWICPICS to provide maintenance and support services.
9. Other Services upon request
Upon request of the Client, TWICPICS can provide additional services, among which:
- Assistance to the Client for the integration of the API in the its IT system;
- On-site intervention at the Client’s premises for maintenance, support and/or training purposes.
The additional Services that the Client has purchased are indicated in the Quotation. The Client also has the possibility to purchase at any time additional Services, which shall be subject to supplementary or amending Quotations to be validated under the same conditions as those mentioned in article “Contracting process”.
10. Financial Conditions
In return for the grant of license and the provision of Services thereto, the client agrees to pay to TWICPICS the price indicated in the Quotation.
Unless otherwise agreed between TWICPICS and the Client, this price is based as follows:
- In case the Client has subscribed to a SaaS based license:
- The license and the Services shall be free of charge up to a 3 Go volume of delivered images;
- Above this volume, the Client shall pay a fee based on a Pay-As-You-Use method which will be calculated each month. The fees per volume of Gigabit are indicated on the Website.
- In case the Client has subscribed to an on-premises license, it shall pay a monthly fee based on the number of 2Core instances purchased. The fee per instance is indicated on the Website.
10.2 Price revision
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 2 (two) month 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.
10.3 Invoicing and payment
Unless otherwise agreed between TWICPICS and the Client:
- the above-mentioned prices are subject to monthly invoices that shall be sent by TWICPICS to the Client by any written means, including email, at the beginning of each month;
- the prices shall be paid within thirty (30) days from the end of the month of invoicing.
The terms and schedule of payment of the prices are described in the Quotation. The Client guarantees to TWICPICS that it has all the necessary authorizations to use the chosen payment mode.
10.4 Payment delays and incidents
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 after prior formal notice by registered letter with acknowledgement of receipt, the contents of which have not been respected within the period indicated in the Quotation:
(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 Contract 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.
11. Obligations and guarantees of the Client
Without prejudice to other obligations provided for in these General Terms and Conditions, the Client undertakes to respect the following obligations.
11.1 General obligations
11.1.1 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 Contract and to keep TWICPICS informed with any difficulty in such performance.
11.1.2 The Client acknowledges having read and understood the characteristics and constraints of the Solution, having received from TWICPICS all necessary guidance, instructions and details to subscribe with full knowledge to the Contract, and being fully acquainted with the Solution that it has, prior to the Contract, sufficiently spoken with TWICPICS to ensure that the Solution fulfils its expectations, needs and constraints.
11.1.3 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.
11.1.4 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.
11.1.5 The Client is solely responsible for its use of the Solution, including its relations with its clients and/or users in this context.
In particular, the Client is solely responsible for the respect of its contractual commitments towards third parties.
TWICPICS should not be responsible for any difficulty that may arise in this context.
11.1.6 The Client is also solely responsible for 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.
The Client warrants 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.
Besides, the Client expressly acknowledges and accepts that the following Master Images shall be automatically refused by TWICPICS:
- Master Images related to weapon sales;
- Master Images that are pornographic, adult materials, that feature or promote sexuality, that are liked to sex industry, save for Master Images related to sex education without any intent to sexually arouse;
- Master Images of child abuse or related to child pornography;
- Master Images related to drugs, promoting illegal activities, scam, crime (such as stealing, fraud, terrorism, bombs, illegal access to telephone or web networks, anarchy) and/or depicting murder and suicide and explaining ways to commit them;
- Master Images of violent, racist, xenophobic or revisionist nature;
- Master Images related to illegal drugs;
- Master Images that could harm a third party's computer system (such as viruses, worms, Trojan horses, etc.);
- More generally, Master Images that are likely to infringe the rights of others or cause harm to others in any manner or form.
The Client therefore undertakes to refrain from publishing such Master Images.
11.1.7 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.
11.1.8 The Client undertakes not to use the Solution for other IP Addresses than those indicated in the Quotation.
11.1.9 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.
11.2 Specific obligations to SaaS-based license
11.2.1 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.
11.2.2 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.
11.3 Specific obligations to on-premises license
11.3.1 The Clients is solely responsible for the use of its servers on which the Solution is installed.
The Client is also solely responsible for maintaining the security of its servers. TWICPICS should not be held responsible for any breach of security or intrusion that could harm the Client’s infrastructure, such as viruses, worms, Trojan horses, etc.
In particular, the Client undertakes not to manipulate these servers without TWICPICS’s prior notice. It also expressly acknowledges and accepts that in case of such manipulation, TWICPICS does not warrant a proper functioning of the Solution.
11.3.2 It is the Client’s sole responsibility to ensure that:
- its hardware equipment and configuration are kept in good working order and meet the minimum requirement for a proper use of the Solution;
- the Users have appropriate profiles and qualifications for using the Solution in accordance with TWICPICS’s instructions.
Whether needed, the Client shall take all necessary measures to meet these requirements.
12. Liability and guarantee of TWICPICS
12.1 General liability
12.1.1 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.
12.1.2 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.
12.1.3 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.
12.1.4 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.
12.1.5 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.
12.1.6 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.
12.1.7 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.
12.1.8 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.
13. Intellectual Property of TWICPICS
The Contract 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 licenses of use within the limits of the Contract.
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 in the Contract.
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 execution of the Contract.
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 the Contract,
(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 the Contract.
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.
15. Personal Data
16. Compliance with social regulation
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 to be 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.
17. Customer reference
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.
18. Intuitu Personae and subcontracting
This agreement is concluded intuitu personae. Accordingly, each Party shall not, without prior written consent of the other Party, subcontract, assign, supply or convey all or part of this agreement in any form whatsoever, including but not limited to, by way of merger, demerger, partial transfer of assets or management lease.
Notwithstanding the foregoing, 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.
19. Termination for breach
In the event of breach by either of the parties of any of their obligations under the Contract, the Contract shall be fully terminated 30 (thirty) days after the party in breach has received notice from the other party by international registered letter with acknowledgement of receipt, and this having received no response, stating the latter's intention to apply this clause, and this without prejudice of any damages that could be claimed from the party in breach.
20. Effect of termination and reversibility
Upon termination of the Contract for any reason whatsoever, the Client shall promptly cease to use the Solution and, in case the Solution was installed on premises, shall deliver back to TWICPICS all equipment, programs and documents relating to 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 that are subject to the Contract 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 5 days from the Client’s request.
TWICPICS shall provide the Reversibility Service within 30 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 execution of the Contract.
TWICPICS undertakes to respond to any request for assistance from the Client or the provider it has selected within 3à days after the termination of the Contract.
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 conditions that will apply will be those in force on the date the Client accepts the Quotation.
22. Law and Jurisdiction
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).