Terms and Conditions Of Sale – 2018

Version 2, applicable as of May 1st, 2018

Limber is an application operated by Limber, a company (société par actions simplifiée) incorporated and existing under French law, with a shared capital of 185,872 euros, having its registered office at 47, rue Marcel Dassault, Boulogne-Billancourt (92100 France), registered with the Commercial and Companies’ Registry of Nanterre, France under number 809 554 132 and intercommunity VAT number FR 76809554132 (the “Service Provider”).

Limber (the “Application”) allows its users (the “Client(s)”) to manage and automate, in accordance with the modalities specified in the documentation available at: http://www.limber.io/en/doc, online marketing campaigns. Various services are offered on the Application (the “Service(s)”) including:

– The centralized management of various social platforms (the “Platform(s)”);

– The reformatting content and text generation on these Platforms; and

– The analysis of the performance of the content and the campaigns carried out.

The present Terms and Conditions of Sale (the “Contract”) apply, without restriction nor reserve, to the exclusion of all other terms, to the supply of the Services aforesaid.

In a situation where the Client is not a professional within the meaning of the French Consumer Code (code de la consommation), the provisions of the Article 11 apply.

The Client acknowledges that he has the legal capacity needed to subscribe to the Services aforesaid and declares to have acknowledged the present Terms and Conditions of Sale and accept them by checking the corresponding box before the ordering online procedure.

The French version of the present Terms and Conditions of Sale http://www.limber.io/conditions-utilisation, prevails over the English version particularly in case of doubt, differences of interpretation, information not clearly specified or if the French version and its translation contradict one another.

ARTICLE 1 – CONTRACT OBJET

The purpose of the Contract is to define the terms and conditions applicable to the access to the Application and the Services purchased by the Client.

The Service Provider grants the Client, who accepts, a right, in accordance with the strict conditions of Article 5, to access and use the Application and for the entire duration of his subscription.

The Client may not assign all or part of the rights and obligations resulting from this Contract without the prior, written agreement of the Service Provider.

It is specified that for proper performance of the present Contract, the Client undertakes to notify the Service Provider as soon as possible of a change in its mailing address (e-mail or PO Box).

The Service Provider will not be liable under any circumstances for the consequences of the Client’s failure to provide this information.

ARTICLE 2 – ACCESS TO THE APPLICATION

a. Access conditions to the Application

The Application is available, via the access client (the “Access Client”), at: http://app.limber.io.

The Access Client is accessed from any computer or mobile and by means of user IDs created by the Client. It provides access to the administrative and management settings of the Application and allows in particular to manage the various Platforms, to generate content on these Platforms, and to analyze the performance of this content and the campaigns carried out.

The IDs are personal and confidential. The Client agrees to do everything possible to keep the user IDs secret and not to disclose them in any form whatsoever.

The Client is completely responsible for the use of these user IDs. It will make sure that no other person not authorized by the Service Provider has access to the Services of the Application. If it becomes aware that another person is accessing these services, the Client will inform the Service Provider immediately and will confirm this notification by registered letter.

In case of theft or loss of user IDs, the Client will inform the Service Provider immediately and will confirm this notification by registered letter.

b. Technical conditions and updates of the Application

The Service Provider provides the Client, the Services via the Application accessible on its server via the Internet 24 (twenty-four) hours a day, 7 (seven) days a week, except for maintenance periods.

In order to ensure that the Application functions properly, it is stated that this Application is optimized for the latest versions of Android and iOs mobile.

The Service Provider reserves the right to update and make functional modifications to the Application at any time that may render access to the Services temporarily unavailable.

The Client is informed of the technical complications and access interruptions that may occur. Therefore, the Service Provider may not be held liable for the unavailability or slowdowns of the Services.

The Service Provider agrees to set up regular controls capable of offering a reasonable assurance that the Client will be able to access and use the Application in accordance with the conditions determined by this contract.

The Client undertakes not to expose the Application to any risk of piracy or to any attempt to the vulnerability of the Application and its security system. Therefore, the Client must take all the appropriate measures to prevent the risks aforesaid or any type of risks likely to affect the Application and its hosting service provider.

c. Platforms and content compatible

The Platforms can connect to the Application below:

– Twitter;
– Facebook;
– Linkedin;
– Yammer;
– WordPress;
– Youtube;

It shall be stated that this list may be amended to better meet the needs of the Client or in cause of changes in the policy of access to these Platforms.

It should be noted that some Limber features use application programming interfaces (API) provided by the social Platforms mentioned above. Access to these interfaces remains at the discretion of the publishers of the social Platforms and as a consequence Limber shall not be held responsible for the interruption of access to these interfaces as well as any change in the conditions of access to these interfaces. The interruption of access to an API decided by the publisher and the changes in the Limber functionalities linked to this API do not constitute a just cause for terminating the Limber subscription or justifying a claim for compensation.

In the event of an interruption of access to an API, Limber will do its best efforts to offer alternative features within reasonable delay and at a reasonable cost.

For each of these Platforms, the Client must provide on the Application its user IDs and the required passwords. Furthermore, the Client agrees to use via the Application only the accounts to which it has the full title.

The content which may be added on the Application must follow the format and other conditions as set out in the documentation available at: http://www.limber.io/en/doc.

ARTICLE 3 – THE OFFERS

Many offers are proposed to the Client (the “Offer(s)”), which are monthly or yearly, renewable automatically, without any particular limitations, as indicated on the following link : http://www.limber.io.

It shall be stated that the Client who has subscribed to an offer free of charge remains still subject to all the provisions of the present Contract. Therefore, it may be held liable in particular if this latter has caused any damage to Limber.

The choice of the Offer is the sole and entire responsibility of the Client. Nevertheless, at any time and even in the course of executing the Contract, the Client can change the Offer subscribed.

In the event that the Client wants to terminate the contract, the latter shall notify to the registered office of the Service Provider its intention by registered letter with acknowledgment of receipt at least one month before the date of expiry of the initial period, date of the post office stamp will be considered proof or send an e-mail to the following address: support@limber.io it being specified that this mail may be invoked only after this latter has confirmed receipt of the registered letter.

ARTICLE 4 – OWNERSHIP OF THE DATA

The Client remains owner of all of the data it provides in connection with the use of the Application.

The Client expressly authorizes the Service Provider to host these data on the server chosen freely by the Service Provider and to use them in particular for the operational needs of the Application but also to use them for statistical purposes.

The Service Provider must make sure that the server chosen for this hosting will use appropriate means to ensure the integrity and the conservation of the documents, as well as the protection and the confidentiality of the collection, storage and processing of the Client’s data.

However, the Service Provider will not be liable under any circumstances for violations of the obligations mentioned above by this hosting service provider. This hosting service provider will remain liable for such violations.

If the data transmitted by the Client includes personal data, the Client guarantees the Service Provider that it has complied with all of the obligations incumbent on it, particularly in terms of Law No. 78-17 of January 6, 1978. Therefore, the Client guarantees the Service Provider against all recourse, complaints or claims associated with the hosting or the use of these data.

ARTICLE 5 – LICENSE AND INTELLECTUAL PROPERTY

The Service Provider grants the Client a personal, non-exclusive, non-transferrable right to use the Services for the entire term of the Contract.

This Contract does not confer any proprietary right on the Services. Temporary provision of the Services cannot be construed as the assignment of any intellectual property right to the Client.

The Client agrees to use the Application only according to its needs. This license is granted for the single and sole purpose of allowing the Client to use the Services in accordance with their intended purpose to the exclusion of any other aim.

The Client may not under any circumstances make the Services available to a third party, and is strictly prohibited from any other use, particularly, but not limited to any adaptation, modification, translation, arrangement, distribution or decompilation.

The Client is also prohibited from reproducing any component of the Application or any documentation concerning it, by any means, in any form and on any medium.

ARTICLE 6 – LIABILITY

6.1 Use of the Application

The role of Limber is limited to the provision of the Services.

The Client is solely liable for the use and its consequences of the Application by him or by any third party.

The Client must ensure that its use of the Application complies with the legal and regulatory provisions. The Service Provider provides no warranty to the Client as for the compliance of the use that it does or intends to do with the national or international legal and regulatory provisions.

6.2 Generation and diffusion of content via the Application

The Service Provider who has only a technical role in the management and the diffusion of the content on the Platforms, cannot have the quality of a content editor. The Client defines freely the content to be diffuse and the period of diffusion.

Content proposals that can possibly be generated by the Application do not affect the freedom of the Client to diffuse them or not. It shall be stated that these proposals are automatically generated by the Application on the basis of the content submitted by the Client; therefore, these content proposals cannot be considered as content proposals from Limber.

The Client shall be thus solely responsible for the diffusion or the non diffusion of content via the Application. It must ensure compliance with the legal and regulatory provisions and will make it his personal business to address all complaint.

6.3 Data and content

The Service Provider does not control the use of the Application by the Client and the various data and information entered by the latter and by any third party. The Service Provider cannot be held liable for this content.

The Client undertakes do not submit a content likely to prejudice public policy, morality, to provoke protestations of third parties, or to contravene the legal provisions applicable.

Therefore, it is expressly agreed that in the event that Limber will be involved, in any way whatsoever, in any country, by a third party on the basis in particular of an intellectual property right and/or industrial relating to an element provides by the Client, the Client is committed to ensuring Limber of the full economic and financial consequences, direct and/or indirect (including costs of the defence and expenses incurred in the proceedings) arising from these demands.

The Client will ensure the sending of the data to the Application and may not blame the Service Provider on any basis and for any reason for non-receipt or loss of the data transmitted. The Client will therefore make sure to keep a backup of the data transmitted. Furthermore, once the contract terminated, the Client is informed that the generated or stored data (bills…) will be deleted by the Service Provider.

6.4 Analysis and statistics of the performance

The analysis and the statistics of the performance provided by the Application have only an indicative value. The Service Provider does undertake no guarantee of their accuracy. Therefore, the Client shall be solely responsible for the consequences of the use of theses analyses and statistics of the performance and cannot blame or seek the liability of the Service Provider, in any way or any basis whatsoever, in particular for financial or commercial consequences directly or indirectly relate to these analyses and the statistics of the performance.

6.5 General provisions

In any event, the Service Provider cannot, under any circumstances, be held liable for losses or indirect or unforeseeable damage experienced by the Client or third parties, which includes any lost profits, inaccurate or corrupted files or data, commercial loss, lost sales or earnings, loss of clientele or loss of opportunity connected in any way and on any basis to this Contract.

Limber cannot be held liable for a delay in performance or the non-performance of this Contract justified by a case of force majeure, as defined by the legal decisions of the French courts and tribunals.

ARTICLE 7 – FEES

The Client owes a fixed annual or monthly fee according to the subscribed Offer, the amount is set according to the price list specified on the following link: http://www.limber.io.

VAT is payable by the consumers, in the sense used in consumer law, entering the present Contract. As for the professional Clients, in the sense used in consumer law, VAT may be payable in addition by these latter in accordance with Community provisions. Therefore, the Client undertakes to provide, upon simple request of the Service Provider, the real and exact information about its legal and tax situation.

The amount of the monthly fee will be paid at the present Contract anniversary date by direct bank debit ; by way of exception, the monthly price of the first month of the subscription must be entirely paid the same day of the order, as follows:

By credit card: Visa, Master Card, American Express.

By bank transfer

The amount of the annual fee, for a subscription for an annual offer, must be fully paid up the day of the subscription to the Offer by the Client.

The exchange payment data are encrypted.

Payments made by the Client will be considered definitive only after the actual cashing of these amounts by the Service Provider.

An invoice is established by the Service Provider and transmitted to the Client as soon as payment has been received.

ARTICLE 8 – TERMINATION

If one of the Parties fails to fulfill its contractual obligations, the Contract may be terminated automatically by the other Party, fifteen (15) days after the sending of a notice by registered letter, return receipt requested, remained without effect. The notice will indicate the failures noted.

Once the Contract is terminated, the Client will cease accessing the Services and the data transmitted to the Application will be deleted.

ARTICLE 9 – COMMUNICATION

The Client, professional in the sense used in consumer law, authorizes the Service Provider to communicate on any medium and by any means the Client’s listing by virtue of this Contract with the Service Provider.

ARTICLE 10 – DATABASE AND PRIVACY

In accordance of Law No. 78-17 of January 6, 1978, it is recalled that the private data requested from the Client are necessary for the processing of its request and for the establishment of invoices.

These data may be communicated to the possible partners of the Service Provider responsible for the execution of the present Contract.

The Client has, in accordance with the national and European applicable regulations, the right to permanently access, modify, correct and oppose its private data:

support@limber.io or to the following postal address: Limber – 47, rue Marcel Dassault – 92100 Boulogne-Billancourt – France.

A response to the request will be given to the Client within 30 calendars days.

ARTICLE 11 – SPECIFIC PROVISIONS APPLICABLE TO CONSUMERS

In a situation where the Client is a consumer in the sense used in consumer law, the following provisions apply.

11.1 Right of withdrawal

By accepting the present Terms and Conditions of Sale, the Client specifically requests to the Service Provider the immediate performance of the provisions of the present Contract before the expiration of the withdrawal period and expressly waives its right of withdrawal. Therefore, pursuant to article L. 121-21-8 of the French Consumer Code (code de la consommation), subsection 1 and 13, the Client can not exercise its right of withdrawal its commitment contracted with the Service Provider.

11.2 Applicable warranties

The Service Provider warrants, in accordance with the legal provisions and without additional payment, the Client against any lack of conformity or hidden defect arising from a fault of conception or realization of ordered Services.

In order to enforce its rights, the Client shall inform the Service Provider, in writing, of the existence of these defects or lacks of conformity of the Services.

The Service Provider will repay or rectify or make rectify, as far as possible, the Services judged defective at the earliest opportunity.

The eventual repayment will be made by credit on the bank account of the Client or by bank check addressed to the Client.

The warranty of the Service Provider is limited to the repayment of the Services actually paid by the Client and the Service Provider can not be held liable or defaulting for any delays or non-delivery due to a case of force majeure, as usually recognized by the French case Law.

The Service Provider shall not be held liable in case of non respect of the legislation of the country where the Services are provided; it’s the responsibility of the Client, the solely responsible for the choice of the Services, to verify the applicable legislation.

11.3 Representations

The Client acknowledges to have notified, prior to the placing of its order, in a legible and understanding form, of the present Terms and Conditions of Sale and of all information set out in article L. 111-1 to L. 111-7 of the French Consumer Code (code de la consommation) and in particular:

– the essential characteristics of the Services subscribed, taking into account the communication medium used and the Services concerned;

– the prices of the Services and all other expenses;

– the information related to the Service Provider identity, its postal address, telephone numbers and email details, and related to its activities, if not already apparent from the context;

– the information related to the legal and contractual warranties and their details implementation;

– the functionalities of the digital contents and if need be and their interoperability;

– the possibility of a conventional mediation in case of dispute;

– the information related to the right of withdrawal.

Ordering on the Site implies full acceptance and adherence to the present Terms and Conditions of Sale, which is expressly acknowledged by the Client which waivers prevailing of any contradictory document, a latter document may not be relied upon the Service Provider.

ARTICLE 12 – APPLICABLE LAW

The present contract is governed by the French law.

In case of dispute, only the French version of the present contract is biding.

ARTICLE 13 – DISPUTES

Any dispute that arises with regard to the interpretation, the performance, the non-performance or the effects or consequences of this contract will, assuming the dispute is brought before the civil courts, be subject to the French civil jurisdiction.

In the event that the Client is a professional in the sense used in consumer law, the Parties expressly grant exclusive jurisdiction to the Nanterre Commercial Court (Tribunal de commerce de Nanterre).

The Client is informed that it could in any event have recourse to a conventional mediation or to any other alternative dispute resolution (conciliation for instance), in the event of any dispute.

ARTICLE 14 – The General Data Protection Regulation (EU) 2016/679 (“GDPR”)

I. PURPOSE 

The purpose of these clauses is to define the conditions in which Limber (hereinafter, the “processor”) undertakes to carry out, on the client’s behalf (hereinafter, “the controller“) , the personal data processing operations defined below. 

As part of their contractual relations, the parties shall undertake to comply with the applicable regulations on personal data processing and, in particular, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 which is applicable from 25 May 2018 (hereinafter “the General Data Protection Regulation“). 

II. DESCRIPTION OF THE PROCESSING BEING SUBCONTRACTED OUT 

The processor is authorised to process, on behalf of the controller, the necessary personal data for providing the following service(s):

  • Identification of visitors with the help of webforms displayed in call-to-actions
  • Management of newsletter distribution lists

The nature of operations carried out on the data is limited to the collection of personal information decided by the controller. The treatment aims at identifying the visitor and sending newsletters.

The personal data processed are:

  • First name
  • Last name
  • E-mail
  • Function
  • Phone number

Other personal data may be collected when the data controller implements custom collection fields.

The categories of people concerned are professionals.

For the performance of the service covered by this contract, the controller shall make available to the subcontractor the necessary information concerning its following users:

  • First name
  • Last name
  • E-mail

III. PROCESSOR’S OBLIGATIONS WITH RESPECT TO THE CONTROLLER 

The processor shall undertake to: 

  1. process the data solely for the purpose(s) subject to the sub-contracting
  2. process the data in accordance with the documented instructions from the controller appended hereto. Where the processor considers that an instruction infringes the General Data Protection Regulation or of any other legal provision of the Union or of Member States bearing on data protection, it shall immediately inform the controller thereof. Moreover, where the processor is obliged to transfer personal data to a third country or an international organisation, under Union law or Member State law to which the processor is subject, the processor shall inform the controller of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest
  3. guarantee the confidentiality of personal data processed hereunder
  4. ensure that the persons authorised to process the personal data hereunder:  have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality  receive the appropriate personal data protection training
  5. take into consideration, in terms of its tools, products, applications or services, the principles of data protection by design and by default 
  1. Sub-contracting 

The processor may engage another processor (hereinafter “the sub-processor”) to conduct specific processing activities. In this case, the processor shall inform the controller, in writing beforehand, of any intended changes concerning the addition or replacement of other processors. This information must clearly indicate which processing activities are being subcontracted out, the name and contact details of the sub-processor and the dates of the subcontract. The controller has a minimum timeframe of 15 days from the date on which it receives said information to object thereto. Such sub-contracting is only possible where the controller has not objected thereto within the agreed timeframe. 

Irrespective of the option

The sub-processor is obliged to comply with the obligations hereunder on behalf of and on instructions from the controller. It is the initial processor’s responsibility to ensure that the sub-processor provides the same sufficient guarantees to implement appropriate technical and organisational measures in such a manner that processing meets the requirements of the General Data Protection Regulation. Where the sub-processor fails to fulfil its data protection obligations, the initial processor remains fully liable with regard to the controller for the subprocessor’s performance of its obligations. 

  1. Data subjects’ right to information 

It is the controller’s responsibility to inform the data subjects concerned by the processing operations at the time data are being collected. 

  1. Exercise of data subjects’ rights 

The processor shall assist the controller, insofar as this is possible, for the fulfilment of its obligation to respond to requests for exercising the data subject’s rights: right of access, to rectification, erasure and to object, right to restriction of processing, right to data portability, right not to be subject to an automated individual decision (including profiling). 

Where the data subjects submit requests to the processor to exercise their rights, the processor must forward these requests as soon as they are received by email to the Controller.

  1. Notification of personal data breaches 

The processor shall notify the controller of any personal data breach not later than 24 hours after having become aware of it and via email. Said notification shall be sent along with any necessary documentation to enable the controller, where necessary, to notify this breach to the competent supervisory authority. 

Once the controller has agreed, the processor shall notify the competent supervisory authority, in the name and on behalf of the controller, of the personal data breaches without undue delay and, where feasible, not later than 72 hours after having become aware of them, unless the breach in question is unlikely to result in a risk to the rights and freedoms of natural persons. 

The notification shall at least:  

  • describe the nature of the personal data breach including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;  
  • communicate the name and contact details of the data protection officer or other contact point where more information can be obtained;  
  • describe the likely consequences of the personal data breach;  
  • describe the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.
  1. Assistance lent by the processor to the controller regarding compliance with its obligations 

The processor assists the controller in carrying out data protection impact assessments. 

The processor assists the controller with regard to prior consultation of the supervisory authority. 

  1. Security measures 

The processor undertakes to implement the following security measures: 

  • Implementation of the encryption of the data used by the Limber application according to the SSL protocol;
  • Implementation of procedures for safeguarding and restoring the availability of personal data and access to them in good time in the event of a physical or technical incident;
  • Implementation of intrusion tests and regular security audits;
  • Priority development of patches related to security vulnerabilities.
  1. Fate of data 

At the end of the service bearing on the processing of such data, the processor undertakes to: At the parties’ choosing: 

  • destroy all personal data, or 
  • return all personal data to the controller, or 
  • return the personal data to the processor designated by the controller 

Together with said return, all existing copies in the processor’s information systems must be destroyed. Once destroyed, the processor must demonstrate, in writing, that this destruction has taken place. 

  1. The Data Protection Officer 

The processor communicates to the controller the name and contact details of its data protection officer, if it has designated one in accordance with Article 37 of the GDPR. 

  1. Record of categories of processing activities 

The processor states that it maintains a written record of all categories of processing activities carried out on behalf of the controller, containing: 

  • the name and contact details of the controller on behalf of which the processor is acting, any other processors and, where applicable, the data protection officer; 
  • the categories of processing carried out on behalf of the controller; 
  • where applicable, transfers of personal data to a third country or an international organisation, including the identification of that third country or international organisation and, in the case of transfers referred to in the second subparagraph of Article 49(1) of the GDPR, the documentation of suitable safeguards; 
  • where possible, a general description of the technical and organisational security measures, including inter alia: 
    • the pseudonymisation and encryption of personal data;
    • the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
    • the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;
    • a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
  1. Documentation 

The processor provides the controller with the necessary documentation for demonstrating compliance with all of its obligations and for allowing the controller or any other auditor it has authorised to conduct audits, including inspections, and for contributing to such audits. 

IV. CONTROLLER’S OBLIGATIONS WITH RESPECT TO THE PROCESSOR 

The controller undertakes to: 

  1. provide the processor with the data mentioned in II hereof 
  2. document, in writing, any instruction bearing on the processing of data by the processor 
  3. ensure, before and throughout the processing, compliance with the obligations set out in the General Data Protection Regulation on the processor’s part 
  4. supervise the processing, including by conducting audits & inspections with the processor.