Terms and conditions of use

These General Terms and Conditions of Use (hereinafter referred to as the " GTCU ") are drawn up by and between the SERVICE SUPPLIER (hereinafter referred to as the "SERVICE SUPPLIER") and the CUSTOMER (hereinafter referred to as the "CUSTOMER") and govern access to and use of the SOFTWARE (hereinafter referred to as the "SOFTWARE") by the CUSTOMER. For the purposes of these GCU, the SERVICE SUPPLIER and the CLIENT may be referred to collectively as the " Parties " and individually as the " Party ".

Acceptance of and compliance with these GCU is an essential and determining condition of the SERVICE SUPPLIER's consent to use of the SOFTWARE by the CLIENT.

The GCU come into force on the date and at the time the CLIENT clicks to accept them. If you accept these GTC on behalf of the CLIENT, you represent and warrant that: (i) you have the legal authority to bind the CLIENT to these GTC; (ii) you have read and understood these GTC; and (iii) you accept the GTC on behalf of the CLIENT.

Consequently, by using this SOFTWARE, you accept these terms. If you do do not accept them, do not use the SOFTWARE.
If you do not accept the terms of this agreement and refuse to comply with them you are not authorized to use the SOFTWARE or its functions.

ARTICLE 1 - PRELIMINARY DEFINITIONS

SOFTWARE: refers to all software elements marketed under the POPINA brand and/or trade name, and includes in particular:

An online administration interface (web back office) accessible remotely by the CLIENT;

The "POPINA" mobile application, dedicated to collection operations, as well as any other application module that may be integrated at a later date and may give rise to a special fee;

The "POPINA PAD" mobile application dedicated to order taking, as well as any other module of the application that may be integrated at a later date and which may give rise to a special price;

The "POPINA ORDER" web application, dedicated to click & collect, tabletop ordering and kiosk ordering operations, as well as any other application module that may be integrated at a later date and may give rise to a special fee;

The "POPINA K" desktop application, dedicated to collection operations, as well as any other application module that may be integrated at a later date, and which may give rise to a special fee;

And any subsequent changes or modifications.

SERVICE SUPPLIER: refers to any party involved in the supply of the SOFTWARE to the CUSTOMER, i.e. the PUBLISHER and any Distributor who has marketed the user license.

Publisher: owner of the SOFTWARE, of the POPINA brand and holder of the copyright and more generally of the related intellectual property rights.

Distributor: any person or company having entered into a distribution agreement with the Publisher, authorized to market and provide user licenses for the SOFTWARE to CLIENTS.

AGREEMENT: means these General Terms and Conditions of Use, which constitute an End User License Agreement (EULA).

CUSTOMER: refers to any natural or legal person who accepts the CONTRACT, and/or the end-user of the SOFTWARE.

Anomaly: refers to any reproducible incident specific to the SOFTWARE, limiting or preventing its use in whole or in part.

Data: refers to all the CLIENT's information and files, generated or saved via the SOFTWARE.

Identifiers: designate the login and password required by Users to access the SOFTWARE. Identifiers are unique, personal and confidential.

Brand: refers to the "POPINA" brand, the exclusive property of the Publisher.

Site: refers to the website or any URL that may be substituted for it by the SERVICE SUPPLIER.

POPINA ADMIN: administration interface used by the PUBLISHER or SERVICE SUPPLIER, dedicated to managing licenses and customer accounts.

Users: the persons designated by the CUSTOMER, under his sole responsibility, and having access to the SOFTWARE via their Identifiers. Depending on the SOFTWARE concerned by the Contract, one "Administrator" User may be designated for each SOFTWARE operating site. The Administrator is responsible for opening and closing accesses for other Users.

ARTICLE 2 - PURPOSE

The purpose of these GCU is to define the terms and conditions under which the SERVICE SUPPLIER grants the CLIENT a right to access and use the POPINA SOFTWARE, as well as the respective rights and obligations of the Parties in the context of this use.

They govern access to the SOFTWARE, its use, the management of the rights granted, responsibilities, data protection, intellectual property and the terms and conditions for terminating access, without transfer of ownership or assignment of the original or a copy and granted to the CLIENT, under the conditions and within the limits defined in these GCU.

The SOFTWARE, and any subsequent developments or modules, is made available to the CLIENT in accordance with the contractual stipulations and within the limits of the rights granted by the SERVICE SUPPLIER.

Acceptance of these GCU conditions access to and use of the SOFTWARE by the CLIENT or its authorized Users. They apply without restriction or reservation to all CLIENTS and Users.

The SERVICE SUPPLIER reserves the right to modify the GCU at any time. The applicable GTCU are therefore those in force at the date of use of the SOFTWARE by the User, which can be consulted at any time on www.popina.com/cgu.

ARTICLE 3 - DESCRIPTION OF THE RIGHT TO ACCESS THE SOFTWARE

The right of access to the SOFTWARE may include :

Access to and the right to use all SOFTWARE applications,
Hosting of certain Data,
Data backup,
Maintenance.

3.1 Remote access

The CLIENT accesses the SOFTWARE via a Backoffice or a mobile / web / desktop application.

The CLIENT is responsible for managing the Identifiers enabling access to and use of the SOFTWARE by Users. The CLIENT shall ensure that no unauthorized person has access to the SOFTWARE, as the SERVICE SUPPLIER cannot be held responsible for any misuse or abuse of the Identifiers. In the event that the CLIENT becomes aware of unauthorized access by a third party, the CLIENT shall inform the SERVICE SUPPLIER as soon as possible of such unauthorized access.

3.2 Right of use

The SERVICE SUPPLIER grants the CUSTOMER, for the duration of the CONTRACT, on a personal and non-transferable basis, a non-exclusive and non-transferable right to use the SOFTWARE, under the conditions strictly defined by the present GCU. The right to access and use the SOFTWARE is granted to the CLIENT within the limits of the rights held by the SERVICE SUPPLIER, which derive from the distribution contract concluded with the SOFTWARE PUBLISHER.

The right to use the SOFTWARE is strictly personal, non-exclusive, non-transferable and limited to the duration of the subscription taken out by the CUSTOMER, in accordance with the rights granted to the SERVICE SUPPLIER by the PUBLISHER. Any sub-licensing, transfer or provision of the SOFTWARE to a third party is strictly forbidden.

Consequently, the SOFTWARE must be used :

by a User authorized by the CLIENT.
in accordance with the provisions of the AGREEMENT and the instructions contained in the SOFTWARE's online operating documentation.

Any reproduction, adaptation, translation, decompilation, distribution or communication of the software, in whole or in part, is strictly prohibited, except in the cases and within the limits provided for in article L. 122-6-1 of the French Intellectual Property Code.

More generally, any unauthorized use of the SOFTWARE by the CLIENT is unlawful under the provisions of article L. 122-6 of the French Intellectual Property Code. Consequently, the CLIENT shall refrain from any type of use not explicitly provided for by law and/or not expressly authorized by this CONTRACT.

3.3 Accommodation

The SOFTWARE data is hosted on the local server and/or in whole or in part on a technical infrastructure on the SERVICE SUPPLIER's premises, or by a hosting subcontractor freely chosen by the SERVICE SUPPLIER for its skills and professionalism in hosting and related services. The CLIENT is hereby informed that the SERVICE SUPPLIER may freely decide to change its hosting mode or hosting partner without having to respect any particular notice period.

3.4 Data backup

Hosted Data will be backed up periodically. Practical details of how to implement this backup are available on request. The purpose of these backups is to protect the CLIENT against the total or partial loss of its Data and of the elements necessary for the operation of the SOFTWARE. However, the CLIENT is invited to make regular back-ups of its Data on its own back-up media or on media supplied by the SERVICE SUPPLIER, for which it shall be solely responsible for safekeeping and storage.

3.5 Maintenance

As part of its obligation of means, the SERVICE SUPPLIER will take all the care and diligence necessary to provide a quality service.

3.5.1 Corrective maintenance

Maintenance services are provided from Monday to Friday, except on public holidays, from 9am to 12pm and from 2pm to 5pm (French time). The SERVICE SUPPLIER reserves the right to modify its working hours and will inform the CLIENT of the new working hours by any means at its convenience.

Should maintenance services prove necessary outside the aforementioned time slot, and after the CLIENT has expressly requested this from the SERVICE SUPPLIER, invoicing at a specific hourly rate may be applied, in accordance with the tariff in force at the time of the request.

Corrective maintenance includes the correction or bypassing of Anomalies. Corrective maintenance may be implemented directly by the SERVICE SUPPLIER or following a corrective maintenance request from the CLIENT.

A corrective maintenance request is any request made by telephone / e-mail / messaging / ticketing solution / chat, the outcome of which is the supply of a workaround solution or the delivery of a patch designed to circumvent or correct the Anomaly reported by the CLIENT.

When the CLIENT encounters an Anomaly, it sends a corrective maintenance request to the SERVICE SUPPLIER's Support department by telephone / e-mail / ticketing solution (if available).

Once the Anomaly has been described by the CLIENT in accordance with the above, the SERVICE SUPPLIER undertakes to implement the necessary means to process the CLIENT's request and resolve the Anomaly as quickly as possible.

The following in particular are excluded from the scope of corrective maintenance:

Interventions due to abnormal use by Users (negligence, operating error, accident, etc.),

Failure of one of the elements making up the CLIENT/User SOFTWARE environment (operating system, other software or software packages, network systems, computers, peripherals, etc.),

Third-party software maintenance.

3.5.2 Upgrade maintenance

Improvements, additions and updates may be made to the SOFTWARE by the SERVICE SUPPLIER during the term of the present contract. As part of the evolutionary maintenance, the CLIENT will have access, at the SERVICE SUPPLIER's discretion, to these improvements, additions and updates within the same application scope.

ARTICLE 4 - SOFTWARE AVAILABILITY

In principle, the SOFTWARE is accessible 24 hours a day, 7 days a week, except in the following cases:

force majeure as described in Article 12,

in the event of maintenance operations required for the SOFTWARE to function properly.

The SERVICE SUPPLIER thus undertakes to use its best efforts to guarantee optimum availability of the SOFTWARE. However, the SERVICE SUPPLIER shall not be held responsible for any disruptions or interruptions beyond its control that may affect transmissions via the Internet and, more generally, the communications network, regardless of the extent or duration of such disruptions or interruptions.

ARTICLE 5 - OBLIGATIONS AND LIABILITY OF THE SERVICE PROVIDER

5.1 The SERVICE SUPPLIER's obligations under the Contract are obligations of means. As such, the SERVICE SUPPLIER will use its best known and reasonable means to perform the obligations thus contracted. The SERVICE SUPPLIER's performance of its obligations will be closely dependent on the collaboration with the CLIENT as set out in Article 7.

Where it is not a Publisher, the SERVICE SUPPLIER may delegate the performance of all or part of the obligations hereunder to the Publisher, in agreement with the latter, within the limits of and in accordance with the agreements binding the SERVICE SUPPLIER to the Publisher.

5.2 The deadlines given by the SERVICE SUPPLIER as part of the performance of the CONTRACT are given as an indication only.

5.3 The SERVICE SUPPLIER may only be held liable in the event of a proven fault.

5.4 Indirect damage suffered by the CLIENT is excluded from any claim for compensation. Indirect damages include, but are not limited to, loss of sales, operating loss, commercial loss, loss of customers, loss of orders, loss of earnings, damage to brand image, or any claim made by a third party against the CLIENT.

5.5 If, however, the SERVICE SUPPLIER is ordered to pay a pecuniary penalty for any reason whatsoever, the damages and any compensation owed by the SERVICE SUPPLIER to the CLIENT, for any reason whatsoever, may not exceed the sums paid by the CLIENT to the SERVICE SUPPLIER for the contractual period during which the incident giving rise to its liability occurred.

ARTICLE 6 - CUSTOMER OBLIGATIONS AND LIABILITY

6.1 In order to assess the suitability of the SOFTWARE for its needs and to make its choice with full knowledge of the facts, the CLIENT acknowledges having obtained the necessary information from the SERVICE SUPPLIER. It has thus become aware of the potential, purpose and functionalities of the SOFTWARE, and has consequently chosen to subscribe to it in this context.

The CUSTOMER declares that he/she is familiar with the Internet, its characteristics and limitations, and acknowledges in particular :

that data transmissions over the Internet are only relatively technically reliable, as they circulate on heterogeneous networks with different characteristics and technical capacities, which are sometimes saturated at certain times of the day;

that data circulating on the Internet is not protected against possible misappropriation and that the communication of passwords, identifiers and more generally any sensitive information is carried out by the CLIENT at his/her own risk;

the remote availability of the SOFTWARE may be subject to intrusion by unauthorized third parties and consequently be corrupted despite the SERVICE SUPPLIER's provision of password-protected access.

Working on the Internet, the CUSTOMER must have a rigorous antivirus policy in place in order to protect himself from any computer damage caused by viruses.

6.2 The proper performance of the Contract depends on the collaboration between the SERVICE SUPPLIER and the CLIENT. The CLIENT therefore undertakes to give all facilities to the SERVICE SUPPLIER's employees/subcontractors for their proper performance and in particular to provide all necessary information, documents, resources of all kinds, material or otherwise, as well as to give free access to any materials, and to ensure the availability, cooperation and competence of all necessary human resources.

6.3 The CLIENT shall be solely liable for any misuse of the SOFTWARE and/or the use of any erroneous Data entered by him or his Users via the SOFTWARE.

The CLIENT undertakes to use the SOFTWARE in accordance with its documentation and the contractual stipulations, including within the limits of the rights granted and the scope defined at the time of subscription.

Any adaptation, modification or correction of the SOFTWARE by the CUSTOMER is prohibited, except in cases provided for by law or with the express authorization of the PUBLISHER or DISTRIBUTOR.

The CLIENT and its USERS expressly refrain from :

bypass the software's technical limitations ;
reconstitute the logic of the software, decompile or disassemble it, except insofar as such operations are expressly authorized by applicable regulations notwithstanding this limitation;
make more copies of the Software than are specified in this Agreement or by applicable law, notwithstanding this limitation;
publish the software for others to copy;
rent or lend the software; or
transfer the software or this contract to a third party.

ARTICLE 7 - SUSPENSION

The SERVICE SUPPLIER reserves the right to suspend access to the SOFTWARE in the following cases:

default of payment, in whole or in part, by the CLIENT,

infringement of the SERVICE SUPPLIER's intellectual property rights, and in particular the rights it holds over its trademarks and SOFTWARE, by the CLIENT,

act of piracy,
abuse of service, i.e. any act by a CLIENT or one of its Users, whether intentional or not, having an impact, of whatever magnitude and nature, on the normal operation of the SOFTWARE,

judicial decision.

Suspension will be immediate and without notice. For the duration of the suspension, contractual provisions not affected by the suspension remain in force.

In the event of infringement of intellectual property rights by the CLIENT concerning the SOFTWARE, the SERVICE SUPPLIER may immediately suspend access to the SOFTWARE, without prior notice, for the duration of the infringement and without prejudice to its rights to terminate this CONTRACT and to obtain compensation for the infringement.

ARTICLE 8 - CONSEQUENCES OF TERMINATION

In the event of termination of the contractual relationship, for any reason whatsoever, Identifiers will be deactivated, and access to the SOFTWARE will consequently be impossible.

Upon termination of the CONTRACT for any reason whatsoever, the CLIENT undertakes to :

Immediately cease all use of the SOFTWARE and its associated components;

Return or destroy all media, copies, documentation and elements relating to the SOFTWARE in its possession or under its control as soon as possible in accordance with the PUBLISHER's or DISTRIBUTOR's instructions;

Provide, upon request, a written certificate of complete destruction of the items returned or destroyed;

Do not keep any copy, partial or total, of the SOFTWARE or its components, except with express agreement or contractual stipulation to the contrary, and except for provisions relating to the NF525 standard to which the SOFTWARE may conform, authorizing the CLIENT to use the SOFTWARE in bridged mode.

It is the CLIENT's responsibility to take any measures it deems necessary to anticipate the consequences for its business of the cessation of access to the SOFTWARE, for whatever reason, in particular by regularly backing up its Data. Consequently, the SERVICE SUPPLIER shall not be held liable in any way whatsoever for the mere fact of such stoppage, even in the event that it is the cause of the stoppage.

In the event of the SERVICE SUPPLIER's cessation of activity or termination of the distribution contract, the CLIENT accepts that the PUBLISHER may substitute itself for the SERVICE SUPPLIER for the management of the end of the subscription and the continuity of the service.

ARTICLE 9 - INTELLECTUAL PROPERTY

9.1 The CUSTOMER is expressly informed that the SOFTWARE, including all its versions, evolutions, corrections, documentation and associated elements, remains the exclusive property of the Publisher, holder of the related copyrights, protected by the provisions of the French Intellectual Property Code.

The Contract does not entail the transfer to the CUSTOMER of any industrial and/or intellectual property rights belonging to the SERVICE SUPPLIER, or when the SERVICE SUPPLIER is not a publisher, belonging to the PUBLISHER, on the SOFTWARE, the POPINA Brand or any other distinctive element. The PUBLISHER alone is entitled to carry out any action on the SOFTWARE (e.g. modification, correction, evolution, etc.).

Any use of the SOFTWARE, the TRADEMARK, trade names or logos, beyond the strict right of use granted, is prohibited and may result in immediate suspension, termination and prosecution.

9.2 The right to use the SOFTWARE is granted at the CUSTOMER's own risk, and no warranty is given in respect of any action (in particular infringement action) brought by a third party against the CUSTOMER in connection with the use of the SOFTWARE.

The SERVICE SUPPLIER, when it is a Distributor, does not guarantee the CLIENT use of the Software beyond the duration and conditions of its own contract with the Publisher. In the event of termination of the distribution contract between the SERVICE SUPPLIER and the Publisher, the CLIENT's right of use may be interrupted without compensation.

9.3 The CUSTOMER agrees not to reproduce or infringe, directly or indirectly, the SOFTWARE. Any use of trademarks, logos, documentation, manuals or marketing materials relating to the POPINA SOFTWARE must strictly comply with the provisions of these GCU and at all times respect the intellectual property rights of the Publisher.

Consequently, the CLIENT undertakes not to modify, alter or exploit these elements for unauthorized purposes, and to strictly respect the related intellectual property rights.

ARTICLE 10 - LIMITATION OF LIABILITY

USE OF THE SOFTWARE BY THE CUSTOMER, INCLUDING ANY USER, IS UNDER THE CUSTOMER'S SOLE CONTROL, DIRECTION AND RESPONSIBILITY. THE CUSTOMER AGREES, ON BEHALF OF ITSELF AND ITS USERS, TO USE THE SOFTWARE IN ACCORDANCE WITH THESE TERMS AND CONDITIONS AND THE PROVIDER'S TERMS AND CONDITIONS OF USE.

THE SERVICE PROVIDER UNDERTAKES TO USE ITS BEST ENDEAVORS TO PERFORM THE SERVICES AND PROCEDURES FOR WHICH IT IS RESPONSIBLE. THIS OBLIGATION IS, BY EXPRESS AGREEMENT, PURELY AN OBLIGATION OF MEANS.

IN NO EVENT SHALL THE SERVICE PROVIDER BE LIABLE FOR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE SUFFERED BY THE CUSTOMER OR USER ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF THIS CONTRACT. INDIRECT DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, ANY FINANCIAL OR COMMERCIAL PREJUDICE, LOSS OF EARNINGS OR PROFITS, COMMERCIAL DISTURBANCE, LOSS OF OPPORTUNITY, THE CONSEQUENCES OF COMPLAINTS OR CLAIMS BY THIRD PARTIES AGAINST THE CUSTOMER OR USER, RESULTING FROM, OR RELATED TO, THE USE OR INABILITY TO USE THE SOFTWARE, TO THE PROVISION OR FAILURE TO PROVIDE SUPPORT SERVICES, OR TO ANY PROVISION OF THESE GGU, EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR CONTRACTUAL LIABILITY ON THE PART OF THE PROVIDER, AND WHETHER OR NOT THE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF THEIR OCCURRENCE.

IN ANY EVENT, THE PROVIDER'S LIABILITY IS EXPRESSLY LIMITED TO COMPENSATION FOR DIRECT DAMAGE PROVEN BY THE CUSTOMER, AND IS CAPPED AT THE AMOUNT OF THE PRICE PAID BY THE CUSTOMER UNDER THE PRESENT TERMS AND CONDITIONS.

THE CUSTOMER REMAINS RESPONSIBLE FOR ITS USERS.

ARTICLE 11 - FORCE MAJEURE

In addition to the events usually considered by French jurisprudence as force majeure, the obligations of the Parties will be automatically suspended in the event of events beyond the control of one of the Parties, which could not reasonably have been foreseen at the time of signing the present contract and whose effects cannot be avoided by appropriate measures, and which prevent the performance of its obligation by the Party concerned.

The Party observing the event must immediately inform the other Party of its inability to perform its service and justify this to the latter.

If the impediment is temporary, performance of the obligation shall be suspended unless the resulting delay justifies termination of the present contract. The Parties may, after a one-month suspension, terminate the obligations hereunder ipso jure, without notice.

If the impediment is definitive, the obligations hereunder shall be terminated ipso jure and the Parties shall be released from their obligations under the conditions provided for in articles 1351 and 1351-1 of the French Civil Code.

The suspension of obligations shall under no circumstances give rise to liability for non-performance of the obligation in question, nor lead to the payment of damages or late penalties. However, as soon as the cause of the suspension of their mutual obligations has disappeared, the Parties will make every effort to resume normal performance of their contractual obligations as soon as possible.

ARTICLE 12 - MISCELLANEOUS

12.1 Applicable law and jurisdiction

These GCU, as well as any dispute or controversy relating thereto, shall be governed by and construed exclusively in accordance with French law, to the exclusion of any other legislation.

ANY DISPUTE RELATING TO THE VALIDITY, INTERPRETATION, EXECUTION OR TERMINATION OF THESE TERMS AND CONDITIONS SHALL BE SUBMITTED TO THE EXCLUSIVE JURISDICTION OF THE COMPETENT COURTS OF BORDEAUX, NOTWITHSTANDING THE PLURALITY OF DEFENDANTS OR THE INTRODUCTION OF THIRD PARTIES.

The official language of these GCU is French. For reasons of convenience, an English version of the GCU is also available. However, this translation is provided for information purposes only; only the French version will be binding between the Parties and will prevail for the interpretation and execution of the GCU.

12.2 Partial nullity

The PARTIES agree that, in the event that any of the stipulations of this deed should be declared null, void or deemed unwritten for any reason whatsoever, the nullity, voidness or disappearance shall be strictly limited to the stipulation concerned, without affecting the other stipulations, which shall retain their full legal effect.

The PARTIES agree, moreover, to substitute for the stipulation declared null and void or deemed unwritten one or more other stipulations not liable to incur the grievance of nullity, voidness or deemed unwritten or having the effect of ensuring as closely as possible the objectives, in particular economic and financial, initially envisaged by the PARTIES by means of the stipulation in question.

12.3 Tolerance

The fact that one of the Parties does not invoke a breach by the other Party of any of its obligations under the Contract shall not be construed as a waiver of the obligation in question for the future. Any waiver shall only be valid if in writing and signed by an authorized representative of the waiving Party.

12.4 Assignment of the CONTRACT

The CLIENT expressly refrains from assigning or transferring to any third party, even free of charge, the rights it holds under the Contract.

12.5 Article titles

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

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