GENERAL TERMS AND CONDITIONS FOR THE USE OF COLIBRI SERVICES
Whose registered office is situated at :
94-96 rue de Paris
92 100 Boulogne-Billancourt
COLIBRI SAS proposes, a collaborative work tool named “COLIBRI” in SaaS mode specifically for managing supply chain management processes. The COLIBRI Services thus marketed by COLIBRI SAS give access to a collaborative work platform.
The use of these Services, i.e. all COLIBRI SAS products, software programmes, services and websites (called collectively “Services” in this document), is governed by the terms of a contract signed between COLIBRI SAS and Yourself. This document describes the contents of the afore-mentioned contract and defines certain terms of this contract. It also sets out the rights and obligations of parties in using Services.
1 – Acceptance
whose registered office is located at:
94-96 rue de Paris
92 100 Boulogne-Billancourt
Registered at the Nanterre « Registre du Commerce et des Sociétés » (RCS) under number 834 242 703 and represented by its legal representative, Mr Nicolas COMMARE.
When You adhere to this contract on behalf a legal entity, You certify that You have the authority to bind this person to these terms and conditions, in which the terms “licensee”, “customer”, “user”, “You” and “your” will refer to the said legal entity.
You certify that you are making a commitment toward COLIBRI SAS in the context of a professional activity and therefore recognise that the protective provisions applicable to the contracts agreed with the consumers and the provisions of Articles 1369-5 and 1369-4 of the Civil Code do not apply to you.
Unless stated otherwise by COLIBRI SAS in writing, the contract linking you to COLIBRI SAS always includes at least the General Terms and Conditions (hereafter “the Conditions”) listed in this document.
You must agree to the Conditions to be able to use the Services. You may not use the Services if You do not agree to the Conditions.
To agree to the Conditions, You can:
(A) click on the option to agree to the Conditions, when this option is made available to you by COLIBRI SAS in the user interface of the Service used; or
(B) use the Services directly. In this case, You acknowledge and agree that COLIBRI SAS considers that your use of the Services means acceptance of the most recent Conditions; or
(C) initial these when signing a subscription Form.
COLIBRI SAS can modify these Conditions at any time by (i) publishing a revised version of the Conditions accessible on the COLIBRI commercial sites and/or by (ii) sending information about the modification to the Conditions to the e-mail address You have given to COLIBRI SAS. In any event, You are responsible for consulting the COLIBRI websites on a regular basis.
No special condition, nor general purchasing conditions can, unless formally agreed expressly in writing by COLIBRI SAS, prevail over these General Terms and Conditions nor supplement them.
2 – Definitions
“User” designates the physical person who, following an invitation from the Customer, has a User account and obtains access to the Services.
“COLIBRI” designates the online collaborative forecast management area provided by the Services.
“Project space” designates a space (within a COLIBRI) allocated to a project to which the Customer can invite Users.
“Administrator” designates the user who manages the COLIBRI and who determines the access rights for each User.
“Services” designate the access to all COLIBRI SAS products, software programmes, services and sites, especially access to your COLIBRI.
“Subscription Form” designates the specific access conditions for a Customer to the Services against payment of a fee for a set period.
“Content” designates any data, information, image, file, sound, text, programme, software, code or element of any type that will be exploited, circulated, stored, transmitted, issued, collected, processed or main available directly or indirectly through the Services.
3 – Language of the conditions
Should there be contradiction between the French and English versions of the Conditions, the French-language version prevails.
4 – Registration
You are not permitted to register for the Services if You are less than 18 years old. By registering, You confirm to COLIBRI SAS that You are 18 or older.
If COLIBRI SAS finds that some of Your registration data are inaccurate, incomplete or obsolete, or if COLIBRI SAS decides, entirely at its discretion, that You are not appropriate subscribers or users of the Services, COLIBRI SAS may terminate all rights of access, reception, use and licence linked to the Services immediately without warning.
You agree to be informed via e-mail of new COLIBRI SAS services, COLIBRI SAS product launches, COLIBRI SAS announcements, modifications to the conditions of use or invoicing of Services.
Your registration data will not be shared with a third party without your prior consent.
5 – Services and transfer of licence
COLIBRI SAS is constantly innovating. You acknowledge and agree that the form and nature of Services provided by COLIBRI SAS are likely to be modified without warning.
COLIBRI SAS undertakes to do everything reasonable under current technology to make the Services available via the Internet round-the-clock, seven days a week. COLIBRI SAS will be authorised to take measures affecting this accessibility if it deems this useful. COLIBRI SAS may not be held responsible for any non-availability related to your Internet connection.
The Customer is authorised to provide Users – the offer subscribed to limits the numbers – under his sole responsibility access to his dedicated COLIBRI space. The Customer knows and acknowledges that he is responsible for Users to whom he has given access to the Services.
COLIBRI SAS is authorised to call on sub-contractors to execute obligations in accordance with this Contract. COLIBRI SAS is responsible for the work and services of sub-contractors in identical conditions to those of its own work and services.
6 – Operation
You undertake that your COLIBRI will be used in reasonable conditions. For all the subscription packages, the bandwidth used by your COLIBRI cannot exceed 1Gb/month or exceed significantly the average bandwidth used by other COLIBRI users (determined solely by COLIBRI SAS), the number of actions linked to the use of your COLIBRI cannot exceed 500/day or exceed significantly the average number of actions of other COLIBRI (determined solely by COLIBRI SAS) and the number of users connected simultaneously to your COLIBRI via the Web platform or the COLIBRIDisc cannot exceed thirty or exceed significantly the average number of users connected simultaneously to other COLIBRI (determined solely by COLIBRI SAS).
Where using your COLIBRI exceeds the thresholds defined above, COLIBRI SAS reserves the right to deactivate your Account or to limit your bandwidth or to suggest a subscription package tailor made to your specific requirements.
You undertake (i) not to attempt to obtain unauthorised access to other computer systems nor to hinder the use and enjoyment of another user of the Services; (ii) to comply with national laws governing the online service, not to send, distribute, make available or transmit any software or other computer file containing a virus/harmful component; (iii) not to use the Services for illegal purposes; (iv) to delete nothing in the products, software programmes, documents or websites used in relation to the Services, including the disclaimers, the non-liability clauses and the copyright or trademark symbols, not to modify any logo not owned by You and that You are not permitted to modify; (v) not to hinder or disturb networks connected to the Services; (vi) not to infringe the copyright, patent, trademark, industrial secret or any other property right of a third party; and (vii) not to transmit illegal documents, confidential documents without consent, documents constituting harassment, libellous, racist, indecent, abusive, violent, threatening, vulgar or obscene documents or another unacceptable document of any type whatsoever.
You agree not to reproduce, duplicate, copy, sell, market or resell the Services for any purpose whatsoever.
You acknowledge that you are alone liable (and acknowledge that COLIBRI SAS has no liability towards You or any third party) for any breach in your obligations such as defined by the Conditions and the potential consequences of such a breach (including losses or damage suffered by COLIBRI SAS).
You agree to be liable for all actions and non-actions by your employees and consultants and anybody who You invite into your COLIBRI space.
You guarantee that the Content that You transfer or which is managed by the Services does not affect third party rights nor violates them in any way regardless of the legislation in force.
7 – Passwords and security
Your password is encrypted. It is not accessible to the COLIBRI SAS employees.
If you have forgotten your password, or it does not work, You can enter a new password by clicking on the link “Forgotten password” on the home page of Your COLIBRI space.
Depending on the access rights defined by the Manager of Your COLIBRI account, You may not see certain data of your COLIBRI or not be able to update certain information. You undertake to respect the access rights allocated to you.
You are alone responsible for all the activities carried out under Your account. You agree to warn COLIBRI SAS immediately of any unauthorised use of Your account or any known breach of security. Access to protected passwords and/or secure sections are reserved for authorised users only. Unauthorised individuals trying to use the Service may be prosecuted.
COLIBRI SAS cannot be held liable for losses/damage that You may suffer following the use by a third party of Your password or Your account, if appropriate, with or without your consent. However, if You are Manager of your COLIBRI account, You are held liable for losses that COLIBRI SAS or any other party may suffer following such use.
COLIBRI SAS uses a cryptology tool built into your browser to guarantee the secure transfer of your information and documents when using the Services. In this respect, COLIBRI SAS uses Secure Socket Layer (SSL) encrypting with security certificate.
8 – Ownership
Access to the Services and the use of associated products is granted under licence, not sold. This involves a use right transferred exclusively under conditions set by the Subscription Package chosen.
The Licences granted by the Conditions do not give You any right over the content of websites, computer programmes, software programmes and products associated with the Services provided by COLIBRI SAS, nor over the associated logos and other names, logos, icons and trademarks identifying the COLIBRI SAS products and services which must not be used with prior written consent from COLIBRI SAS. Any Content that You download, transfer, publish publicly, process or enter in the Services remains your exclusive property if You are its legal owner. COLIBRI SAS has no liability as to these components. You guarantee to hold any right required to exploit Contents that you will be using via the Services.
You are not permitted especially to:
– separate the components of a Software on two or more computers, obtain and use previous or subsequent versions of components at different times or transfer components separately, unless stipulated otherwise between the parties;
– reconstitute the logic of any Software, Correction or Deliverable, decompile or disassemble it, except insofar as these operations are permitted by the applicable regulations notwithstanding this limitation;
– distribute, transfer as a sub-licence, hire out, loan or host any Software, Correction or Deliverable, unless stated otherwise in the Contract or in a separate written agreement.
COLIBRI SAS reserves all the rights that are not expressly transferred.
Protection of rights
You undertake to protect COLIBRI SAS’s intellectual property rights, mainly:
– not delete the property and copyright texts on the Software components, its interfaces and on the website,
– make sure that the Software is not copied,
– not seek to by-pass any protections of the Software Package.
9 – Guarantees
You acknowledge that You have the skills giving You the means to assess the exact scope of characteristics of the Services and their suitability for their intended use.
You guarantee to have supplied COLIBRI SAS with all relevant information to allow the normal use of the Services.
ALL INFORMATION, DOCUMENTS, PRODUCTS AND SERVICES PROVIDED BY COLIBRI SAS ARE SUPPLIED WITHOUT EXPRESS OR IMPLICIT GUARANTEE OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THE GUARANTEES OF MARKETABLE QUALITY, SUITABILITY FOR A PARTICULAR USE OR SPECIFIC EXPECTATIONS, THE GUARANTEES RELATING TO THE ACCURACY OR RELIABILITY OF RESULTS DRAWN FROM USING THE SERVICES OR TO THE FACT THAT THE SERVICES MUST BE WITHOUT INTERRUPTION, FULLY SECURE, FREE OF SOFTWARE ERRORS OR THAT THE DEFECTS AND FAILURES ENCOUNTERED IN THE SERVICES MUST BE CORRECTED.
10 – Damage limitations and liabilities
Insofar as permitted by the applicable regulations, the liability of each party is limited to the direct damage up to the sum paid for the Online Service by the Customer over the twelve months prior to creating the reason for the claim. This limitation applies regardless of the basis of liability invoked (contractual liability, in tort, mainly for negligence; strict liability; breach of guarantee or other). Nevertheless, the limitations of this article do not apply to the breach by one of the parties of the intellectual property rights of the other party.
EXCLUSION OF LIABILITY FOR CERTAIN OTHER TYPES OF DAMAGE. INSOFAR AS PERMITTED BY THE APPLICABLE REGULATIONS, REGARDLESS OF THE BASIS FOR THE ACTION, COLIBRI SAS, OR ANY OF ITS SERVICE PROVIDERS, MAY NOT BE HELD LIABLE FOR ANY ACCESSORY DAMAGE (MAINLY SPECIAL, ACCESSORY OR INDIRECT DAMAGE, LOSS OF PROFIT OR TURNOVER, INTERRUPTIONS IN ACTIVITY OR LOSS OF COMMERCIAL INFORMATION) RESULTING FROM, OR LINKED TO, THESE GENERAL TERMS AND CONDITIONS, EVEN IF THEY HAD BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGE OR IF THIS POSSIBILITY WAS PREDICTABLE. IN ADDITION, YOU CANNOT CLAIM A REDUCTION IN PAYMENT, DAMAGES OR OTHER SANCTIONS IN THE EVENT OF INTERRUPTIONS OF SERVICES OR ERRORS PREVENTING THE TRANSMISSION OF DATA NOT EXCEEDING EIGHT WORKING DAYS.
11 – Subscriptions and fees
Access to the Services and the use of associated products is a right granted exclusively in conditions set out in the Subscription Package, mainly for the number of project Spaces, the number of Users, the assistance and storage space defined by the Subscription Package that determines the characteristics of your specific COLIBRI space.
The descriptions of Services presented on the COLIBRI SAS Site state, for each Subscription Package, the duration of the Subscription taken and the components included in the package.
Regarding an online subscription, You acknowledge that You had the chance to verify the detail of your Subscription Package and its total price and to correct any errors before confirming his acceptance. COLIBRI SAS will acknowledge receipt of the taking out of the Subscription Package electronically.
The Price, according to the modality provided for in the package, may be indexed according to a reference index of the country or area in which You are located. COLIBRI SAS may notify a price increase or drop of one and/or other of the use rights granted or optional services taken out which will be applicable three months after the notification. Within this timescale, You may elect to continue your subscription at the new price or terminate all or part of your subscription by notification sent to COLIBRI SAS at least one month before the new price is applied. It is provided for expressly that failure by the Customer to break silence during this period will be interpreted as your express acceptance of the new price.
Free subscription A free subscription granted expressly by COLIBRI SAS does not require the payment of subscription charges. Any free subscription save for special conditions last for thirty days which may or may not be renewed for the same period entirely at the discretion of COLIBRI SAS.
If You have taken out a specific free trial package for thirty days, COLIBRI SAS will provide free use of Services for thirty days with effect from confirmation of your subscription request for an online subscription, otherwise with effect from signing the subscription request.
At the end of the trial period, if You do not wish to move to a paying subscription package, COLIBRI SAS reserves the right to interrupt the services and to delete without delay the data stored in your COLIBRI space.
Unless agreed otherwise with COLIBRI SAS in writing, the total amount of fees due for the duration of the subscription remains definitely acquired and/or due, even if the subscription is terminated for any reason whatsoever.
Should You cancel the bank card supplied to COLIBRI SAS or if the card has been terminated, You must supply COLIBRI SAS with a new number for a valid bank card immediately. Where You do not provide COLIBRI SAS with the number of a bank card with sufficient funds, You will be in breach of these Conditions.
Where You change or close the bank account given to COLIBRI SAS for the direct debit, You must provide COLIBRI SAS immediately with a new direct debit mandate on your new bank account. Where You do not provide COLIBRI SAS with a new direct debit mandate or if your account does not have sufficient funds, You will be in breach of these Conditions.
COLIBRI SAS reserves the right to interrupt or modify any discount voucher, credit or special promotion entirely at its discretion.
You may upgrade your Subscription Package at any time. Any change will be invoiced at a partial period factor of the new Subscription Package.
Where failure to pay is repeated, the subscription for the entire period taken out in the Subscription Package should be paid in full to COLIBRI SAS within thirty days from the invoice issue date or the initial payment request. Penalty interest may be demanded in according with the prevalent legislation for anything beyond this period. COLIBRI SAS will be permitted to invoice costs for any payment reminder and reserves the right to send reminder messages by e-mail.
COLIBRI SAS may suspend access to the Services if fees are unpaid for more than thirty days. Without prejudice to any sum due, mainly the payment of fees up to the end of the subscribed period, COLIBRI SAS may also terminate this Contract immediately where there is failure to comply with these Conditions, especially if fees remain unpaid for more than thirty days.
Early termination of the Contract will not give rise to any reimbursement of fees paid in advance nor any compensation.
12 – Termination
This contract may be terminated automatically:
- by COLIBRI SAS, if the fees or all other sums mentioned in the subscription package and which have been agreed for payment remain unpaid with effect from their due date and for a period of two weeks after notification by COLIBRI SAS,
- by COLIBRI SAS if You infringe these Conditions without resolving this within one week with effect from a written notification or use the product inappropriately or by using, for example, data which do not belong to you. In this case COLIBRI SAS may as a precaution suspend your use rights immediately.
In all cases of termination, all the sums paid or remaining due by the Customer and the fees payable up to the date on which the termination takes effect will remain definitively acquired by COLIBRI SAS; this in no way prejudices the claim for legal costs and any damages that may be requested by COLIBRI SAS.
When the Licence is terminated or expires, the Customer undertakes to cease all use of the Software.
COLIBRI SAS may end the online access to the COLIBRI Software and its commercial operation early, without compensation or penalty for the Customer who agrees to it expressly, provided it gives three months notice. In this case, COLIBRI SAS will reimburse any sums that may been overpaid under the Customer’s subscription.
In the event of subscription to a free trial package, COLIBRI SAS may end the use rights, immediately and without warning.
Unless terminated due to Customer breach or free trial subscription package, when the COLIBRI Software subscription licence expires, COLIBRI SAS will keep the Company’s Customer Data in an account offering limited functionalities for ninety days so that the Customer can extract them using standard Microsoft processes and tools. The Customer is required to reimburse COLIBRI SAS for all associated expenditure. After ninety days, COLIBRI SAS will disable the Customer’s account and destroy its Customer Data. The Customer agrees that, except for what is written above, COLIBRI SAS has no obligation to continue to keep, export or return its Customer Data and that COLIBRI SAS cannot under any circumstances be held responsible for the deletion of Customer Data in accordance with this contract.
ALL THE NON-LIABILITY CLAUSES AND GUARANTEE AND DAMAGES LIMITATIONS ALONG WITH THE CONFIDENTIAL COMMITMENTS EXPRESSED IN THESE CONDITIONS (1) ARE ESSENTIAL TO THE AGREEMENT BETWEEN THE PARTIES AND (2) WILL SUBSIST EVEN IN THE EVENT OF TERMINATION, EXPIRY OR RETRACTION OF THESE CONDITIONS.
13 – Damage limitations and liabilities
Subject to compliance with the Conditions and rights granted by the subscription package, COLIBRI SAS will provide the Customer with e-mail support by intervening without undue delay. The Parties will communicate via the e-mail addresses that the Customer indicates when registering for the COLIBRI services and the e-mail addresses presented on the commercial COLIBRI sites.
If the Subscription Package offers this e-mail support as an extra, or telephone support or remote support, this may not exceed the quota of hours defined in the Subscription Package.
The support service will only be available on working days from 9 a.m. to 6 p.m. A call made or e-mail sent outside these times will be deemed to have been made or sent on the next working day.
For online support, COLIBRI SAS may, with your prior agreement, have to connect to your COLIBRI. In this case, COLIBRI SAS undertakes to keep any information it may access confidential.
Where your subscription package allows, COLIBRI SAS may give You the option of doing your own back-ups using tools made available to you.
Even if COLIBRI SAS has secure back-up systems for your data, COLIBRI SAS declines all responsibility for any loss or deformation of the Content exchanged electronically on the Services or by them. You are entirely responsible for backing up your Contents.
14 – Indemnification
15 – Confidentiality
The previous stipulation does not preclude COLIBRI SAS from stating in its advertisements or commercial documents or offers, as a reference, all the subscription packages, stating the company name, logo and brand of the subscriber.
These obligations will survive any termination, expiry or retraction of these Conditions.
You agree to the name, logo or URL of your COLIBRI being published on a public page of the commercial COLIBRI sites. The option of disabling these publications may be proposed according to the Subscription Package chosen.
Unless waived, COLIBRI SAS is not permitted to review the Content that You manage through the Services.
16 – Personal Data
94-96 rue de Paris
92 100 Boulogne-Billancourt
17 – Force majeure
When a party is prevented for more than one month due to a case of force majeure, the other party will be authorised to terminate the Contract in writing without any damages being due.
18 – Transfer
You are not permitted to transfer your rights and obligations by virtue of this Contract without having obtained prior written consent from COLIBRI SAS. In any case, You remain entirely responsible for executing the obligations set out in this Contract, in the event of a breach by your assignee.
19 – Miscellaneous
Failure by COLIBRI SAS to exercise a right fully or partially does not prevent it doing so at a later date. The waiver by COLIBRI SAS of any breach must not be considered as a waiver of any subsequent breach.
You acknowledge and agree that COLIBRI SAS is located in the remote access solution market and that COLIBRI SAS can offer Services identical or similar to yours, third parties and mainly Your competitors.
20 – Applicable law – Allocation of competence
B/ WHERE ONE OF THE PARTIES DECIDES TO ENTER INTO PROCEEDINGS TO HAVE THESE GENERAL TERMS AND CONDITIONS APPLIED, THE PARTIES AGREE TO THE COMPETENCE OF THE FOLLOWING COURTS:
IF THE CUSTOMER IS DOMICILED OUTSIDE THE EUROPEAN UNION, SWITZERLAND AND THE UNITED STATES OF AMERICA, ANY DISPUTE THAT COULD BE LINKED TO THESE CONDITIONS OR RESULT FROM IT, ESPECIALLY ANY DISPUTE RELATING TO ITS EXISTENCE, VALIDITY OR TERMINATION, WILL BE SUBJECT TO ARBITRATION, IN ACCORDANCE WITH THE ARBITRATION REGULATIONS OF THE SINGAPORE INTERNATIONAL ARBITRATION CENTRE (SIAC). THIS REGULATION IS INCORPORATED BY REFERENCE IN THIS ARTICLE. THE ARBITRATION COURT WILL COMPRISE A SINGLE ARBITRATOR NAMED BY THE CHAIRMAN OF SIAC. ALL ARBITRATION PROCEDURES SHOULD TAKE PLACE IN ENGLISH.
IF THE CUSTOMER IS DOMICILED WITHIN THE EUROPEAN UNION OR SWITZERLAND, THE COMPETENT COURT IS THAT OF PARIS FOR ANY DISPUTE RELATING TO THE EXISTENCE, VALIDITY, INTERPRETATION OR TERMINATION OF THE CONDITIONS.
C/ THIS ATTRIBUTION OF COMPETENCE DOES NOT UNDER ANY CIRCUMSTANCES PREVENT THE PARTIES FROM SEEKING AN INJUNCTION FROM OTHER COMPETENT COURTS TO HAVE THE INTELLECTUAL PROPERTY RIGHTS OR OBLIGATIONS OF CONFIDENTIALITY RESPECTED.
21 – Communications and notifications
As expressly agreed, any Communication or notification sent by COLIBRI SAS will be deemed to have been received and read by you within three calendars of it being sent. It is therefore up to you to update and consult this e-mail address regularly. You will alone be responsible for breaching your obligations in this respect.