Terms of service
General terms and conditions for the “GoodBarber” Service
WHEN SUBSCRIBING TO THE SERVICE, THE CLIENT ACCEPTS THE FOLLOWING PROVISIONS (HEREINAFTER THE “CONTRACT”) TO RULE THE USE OF THE ONLINE SERVICE WWW.GOODBARBER.COM, INCLUDING THE OFFLINE COMPONENTS (COLLECTIVELY THE “SERVICE”). IF THE CLIENT SUBSCRIBES TO THIS CONTRACT ON BEHALF OF A CORPORATION OR ANY OTHER LEGAL ENTITY, HE WARRANTS HAVING FULL RIGHT AND TITLE TO ENGAGE THIS ENTITY FOR THE HEREINAFTER PROVISIONS, IN WHICH CASE “CLIENT” REFERS TO THIS ENTITY. IF THE CLIENT DOESN’T HAVE SUCH POWER OR IF HE REFUSES THESE PROVISIONS, THEN HE SHALL GIVE UP THE REGISTRATION PROCEDURE AND WON’T BE ABLE TO USE THE SERVICE.
ARTICLE 1 - DEFINITIONS
In these terms and conditions, the parties agree on the definition of the following terms, whether in singular or in plural:
“Application”: service created by the Client through GoodBarber and made available to the public for download from a platform such as Appstore®, GooglePlay® and its derivative or any intranet platform.
“Author”: any person drafting or publishing on the Internet, more specifically on the Application.
“Blog”: Internet Web site enabling the publishing of content and the drafting of commentaries by the readers with an Internet diffusion.
“Client”: any corporate body or physical person subscribing to the present Contract.
“Access codes”: username/password used together or separately to identify oneself and access the GoodBarber Service. The access codes are part of the user account.
“Order”: online subscription of the Service.
“Data”: files and information of any kind (text, picture, sound, video, etc.) under the Client’s responsibility and dropped on the servers operated by GoodBarber or any subcontractor.
“GoodBarber”: refers to the editor of the website www.goodbarber.com and service provider as defined in the legal notice
“Guest”: any person being invited by a User of the GoodBarber Service to drop comments or publish as an Author, under the Client’s responsibility.
“Service”: bunch of services made available by GoodBarber and consisting mainly in the release of tools (depending on the offer aimed at creating mobile applications for smartphones.
“User”: any physical person having an account allowing to access, even for free, to an application powered by GoodBarber, under the Client’s responsibility.
ARTICLE 2 - PURPOSE – PRECEDENCE
The Client acknowledges having checked the Service matches its needs and having received from GoodBarber any necessary information or advices to subscribe to this Contract.
The purpose of the Contract is to define the technical and financial conditions in which Goodbarber commits itself with the Client.
The present terms and conditions, along with appendices if necessary, apply on any Order.
GoodBarber provides a Service composed of tools enabling the User to create its own Applications whether from an existing Blog, website or from scratch. The Application allowsto publish content. The use of the Service is submitted to the present general terms and conditions which apply to the Users, Authors and Guests as well.
The Services made available by GoodBarber for free, in particular during the free 30 day trial period or during any other period of time depending on a promotional offer, are likewise submitted to the hereunder Contract.
GoodBarber may modify or update these general terms and conditions. The Client, the User must regularly check the page "Terms of Services" where the latest applicable version is published.
The Users must be of age or legally recognized as such.
ARTICLE 3 - DESCRIPTION OF THE SERVICE
GoodBarber provides an online Service of Applications and content’s publication. The GoodBarber Service enables the Client to create its Application and publish it through any relevant online store.
The Service includes as well functionalities enabling the Users to update the Application and the related content.
The Guests can also update their data as much as they want to.
These Applications must not only meet GoodBarber pre-requisites but also the ones of the relevant Application store. The period of time required for the publication of an Application on such store may vary from one store to another. The Client is warned that a store, and especially Apple® or Google® and its derivative, may not publish an Application not meeting its own technical criteria or violating its own applicable general terms and conditions. GoodBarber cannot be held responsible for such mishap. The Client is warned he or she has to comply with such applicable conditions that may regulate the type of disclosed content as well.
GoodBarber does not warranty the lifespan or the optimization of the Service for a said Internet browser nor for an operating system. GoodBarber doesn’t warrant the compatibility between an Application when such operating system and/or browser is upgraded.
The number, the type, the accessibility of the proposed functionalities depends on the chosen offer and the status of the User (administrator, Author or Guest).
A detailed description of the offers is available at this address: http://www.goodbarber.com/pricing/.
The Services doesn’t include the training of the Client to the tools made available, the Client having to get a minimum of technical skills.
Any new functionality, whatever kind of, related to an offer will be automatically submitted to the hereunder general terms and conditions, except if stated otherwise.
The use of the Service requires the Client/User to subscribe to an internet connection with proper hardware which costs are independent from the GoodBarber Service. Besides, in order to build an Application with GoodBarber, the Client may have to open at his own expense an account in an online Application store and subscribe to the developer account.
As part of the use of the Service, GoodBarber may send to the User a certain amount of information (newsletters, administrative mail, etc.). These information are part of the subscription of the Service, a User cannot refuse it.
The User undertakes not to access the Service other than using the appropriate interfaces designed for it.
The Service being basically an online application, GoodBarber may occasionally need to send to the Users important announcements concerning its operating conditions.
ARTICLE 4 - SUBSCRIPTION OF THE SERVICE
To become a User, the subscription process must be fully completed.
Valid billing information, a permanent and valid E-mail address and a certain number of other subscription information must be communicated.
The User must define himself a username, a password and a name for the Application.
Each Guest shall likewise fill in such identification form to be able to act on the Application.
By using the Service, the Client undertakes to:
1. Provide true, accurate, up-to-date and complete information during the subscription process;
2. Regularly update the subscription and, when required, credit card information so that it remains true, accurate, up-to-date and complete.
If a User enrolls for a 30 day free trial, or any other promotional offer, he or she must comply with the subscription steps.
WARNING: Hotmail, Yahoo! and Gmail webmail services may have anti-spam filters that may block E-mails sent by GoodBarber (renewal reminders, maintenance mails). The Client is invited to take this into account when he or she mentions his or her up-to-date mail.
ARTICLE 5 - ACCESS TO THE SERVICE
The username AND the password created by the User allow him or her to have direct access to his or her account once the subscription process is completed.
CAUTION: the Users are responsible for all actions occurring on their account with their username.
The User undertakes to:
1. Contact GoodBarber immediately in the case of an abusive use of the user’s password or the account in the case of any security breach ;
2. Make he/she has properly left the account at the end of each session through the “deconnexion” link aimed for it.
GoodBarber cannot be held responsible on any ground for any loss or damage related to a User’s error.
The Services are purported to be perfectly delivered after subscription from the Client’s first access to the GoodBarber website. GoodBarber makes available to the Client tools for the building of its Application. The Client develops the Application on its own. Except separate estimate subject to proper legal conditions, at no time and no way shall GoodBarber provide the Client with a bespoke, ready-to-use Application or requiring specific developments.
ARTICLE 6 - GoodBarber’s OBLIGATIONS
GoodBarber undertakes to bring full care and due diligence to the supply of a quality Service pursuant to the profession standards and the state of the art. GoodBarber’s obligations are performed on a “best effort” basis.
If the Client subscribes to the additional platform publication Service, GoodBarber’s shall act on behalf of the Client. The platform general terms and conditions apply and the Client agrees to hold GoodBarber harmless from all claims and actions resulting from illegal usage of the Application.
ARTICLE 7 - GoodBarber’s RESPONSIBILITY
7.1 Exclusion of responsibility
7.1.1 Technical access to the Service
The Service relies on complex technologies accessible via the Internet network that the Client recognizes as being open and heterogeneous for it is based on third party technology.
GoodBarber denies any kind of responsibility in case of a potential damage which may result from the unavailability of the Service or a problem of connection to the Service.
7.1.2 Published information and Data
The information and messages published by the Users are their exclusive responsibility.
GoodBarber cannot be held responsible for fake announcement made by a Client, User or Guest. Likewise, GoodBarber cannot be held responsible if the Client’s, User’s, Guest’s published information at the day of the subscription are no longer valid. Besides, GoodBarber cannot be held responsible for the malevolent use of the Data by a Client, User or Guest or even third party.
The responsibility of GoodBarber can be held only if it is proven that the damage results from its own action. GoodBarber cannot be held responsible for the violation of the hereunder terms and conditions by a Client, User or Guest.
7.1.3 Client’s fault
GoodBarber’s responsibility cannot be held if, due to the Client, the following occurs:
o Deterioration of the platform hosting the Service ;
o Client’s, User’s or Guest’s misuse of the interfaces, omission, carelessness or disrespect of the pre-requisites or advice ;
o Disclosure, loss or illegal use of the Access Codes ;
o Client contractor’s fault, omission, carelessness on which GoodBarber has no control whatsoever;
o Temporary or permanent interruption of Service resulting from an order of an administrative or judiciary authority, or third party notification pursuant to article 6 of the French law for "confidence in electronic commerce” (dated June 21st 2004, #2001-575);
o Partial or total destruction of Client’s Data attributable to the Client itself. The Client is warned and encouraged to take out any proper insurance to cover risk related to the damages related to the alteration or the loss of Data.
7.2 Force Majeure
GoodBarber cannot be held liable if the performance of the Contract or any other hereunder obligation incumbent to GoodBarber, is obstructed, limited or impeded due to fire, explosion, network communication breakdown, collapse of hosting facilities, epidemic, earthquake, flood, electricity shortage, war, embargo, statute, order, demand from any government, strike, boycott, loss of telephone operator’s or hosting provider’s licence or any other circumstance without reasonable GoodBarber’s control (“Force majeure case”), then GoodBarber will be free from the performance of its obligations in the limits of the said obstruction, limitation, impediment, likewise, the Client will be freed from its obligations as their performance is obstructed, limited or impeded too. Each party endeavors to limit the occurrence and the effects of such Force Majeure Case and shall proceed with their respective obligations as long as such case disappears. The party affected by a Force Majeure must inform the other by E-mail of the prognostics of duration or termination of such case. If the effects of a Force Majeure case shall last more than 30 days from the notification of it to the other party, the Contract will be automatically terminated when one party asks for it, without any right of indemnification for any of them.
The compensation GoodBarber may pay in case of a breakdown of a Service originating from a its personal fault shall correspond to the personal, direct damage related to the said breakdown, excluding any indirect damage such as, without limitation, loss of sales, loss of profit, loss of customers, damage to the Client's image or reputation, or any other loss of information, Data of any kind.
In any case, all types of damages together, the amount of the compensation GoodBarber may bear is limited to the amount paid by the Client to GoodBarber in the last 12 months before the damage or the amount billed for the GoodBarber’s Service for which the responsibility is established, whichever is the lowest pursuant to the provisions of the article 19 “Service Level Agreement”, hereunder.
ARTICLE 8 - GRANT OF LICENSE
GoodBarber hereby grants to the User, for the whole world, a non-exclusive, limited term, personal, non-assignable license to use the Service for the duration of the Contract, exclusively for its own activity, in the conditions hereunder. All the rights which are not expressly awarded to the Client are reserved to GoodBarber and its partners vested in such right of distribution.
ARTICLE 9 - CLIENT’S OBLIGATIONS
The Client warrants having full right and title for taking the present Contract. Technically speaking, the Client certifies having the required technical skills to use the Service or, at least, to train itself to be able to use by itself the Services. The Client is obliged to a collaboration duty, having, in particular, to respond promptly to any GoodBarber’s request.
The Client acknowledges that the Application cannot work properly if the source code for the content the Client wants to embed in the Application is flawed. GoodBarber cannot be held responsible for that, at any time.
The Client is responsible for all activities taking place from its personal account and he undertakes to comply with any applicable statute, regulation and treaty, national or foreign that may apply in the course of the use of the Service, including on personal data protection, international communication, conduit of information, intellectual property, individual fundamental rights, including third party rights. In particular, the Client undertakes to publish a regular legal notice on the Application, pursuant to article 6 of the French law for "confidence in electronic commerce” (dated June 21st 2004, #2001-575). Moreover, the Client undertakes to take out any necessary insurance next to any notoriously reputable insurance company in order to cover any loss or damage that may occur in the course of Contract.
The Client must:
1. Regularly check the E-mail address communicated to GoodBarber ;
2. Use the intranet made available for technical matters with GoodBarber;
3. Report immediately to GoodBarber any non-authorized use of a password or account or any security breach known or suspected;
4. Report immediately to GoodBarber any copy or distribution of content known or suspected to be illegal by the Users and make its utmost to put and end to it; and
5. Refrain from usurp somebody else’s identity or communicate false identity on its identity to access or use the Service.
The Client undertakes to communicate its accurate mail and postal contact details to GoodBarber.
The Client is the unique responsible for the use of the password to use the Service.
The Client can only use the Service for its own needs and shall not:
1. Make an Application to send unsolicited mail (“spam”) or any other big scale mailing breaking the law;
2. Send or host illegal Data (osbscene, pornographic, threatening, defamatory, or that may target and be harmful to minors or to private life);
3. Send or host counterfeiting content, files and even hypertext links enabling to download protected creation on any form it may be, without the authorization of the owner of right or his or her beneficiary ;
4. Send or host Data containing virus, computer worms, Trojans or any malevolent software;
5. Interfere or impede the integrity or the functioning of the Service or the data related to;
6. Try to obtain a non authorized access to the Service or at the related systems and networks.
Certain Service’s commercial offers may propose better integration capabilities via an application interface programming (API). The number of API push the Client might execute may be limited.
All applications created with one subscription may not make more than a combined total of 150 000 requests per day to the GoodBarber APIs.
Pursuant to article “termination, limitation and suspension of Service”, the Client acknowledges that GoodBarber is entitled to limit, restrain, interrupt or suspend the whole or a part of the Service during a minimum of a 5 day period of time or even terminate the Contract, especially in case of disrespect of the warnings sent to the Client by E-mail for spamming. On this particular subject matter, GoodBarber reserves the right to install on its server software tools blocking such acts in case anyone (client or not) has complained about it in writing.
ARTICLE 10 - INFORMATION AND DATA ON THE CLIENT’S ACCOUNT
GoodBarber cannot claim any proprietary rights on the Data, information or documents that the Client submits to the Service when using it. The Client is entirely responsible, excluding GoodBarber of the accuracy, quality, integrity, legality and reliability of the intellectual property rights or right of use the Client may have on the Data. GoodBarber cannot be held responsible for the deletion, the correction, the destruction, the damage, the loss or the inappropriate hosting of any Client’s Data. If the Client requires it expressly at the time of the termination of the Contract (for any reason other than the breach of the Contract by the Client), GoodBarber will make available the Data within 30 days after such termination. GoodBarber may withhold, remove and/or get rid of the Data, without notice, as soon as the Client violates the Contract, including belated payment. In case of a breach, the Client’s right of access and right of use cease immediately and GoodBarber cannot be compelled to host or transmit the Clients’ Data wherever it is.
ARTICLE 11 - INTELLECTUAL PROPERTY
GoodBarber warrants having on his own the integrality of the rights, including intellectual property rights on the technology, content being part of the Service. The Contract hereunder transfers no property rights on the Service and its technology or content to the Client, they shall remain GoodBarber’s personal rights. The GoodBarber name, logo and www.goodbarber.com as well as product’s names related to the Service are GoodBarber or third parties’ trademarks; no grant of license is made to the Client.
In case of a final judgment that may withdraw certain intellectual property rights from GoodBarber (such as templates or graphics or software development tools), at its sole initiative and at its own expense, GoodBarber may propose to the Client any other alternative having equivalent characteristics.
The suggestions, ideas, improvement requests, returns of experience, recommendations or any information the Client or any other third party may formulate about the Service directly benefit GoodBarber who is exclusively entitled of the intellectual property rights that may apply.
ARTICLE 12 - TECHNICAL SUPPORT
GoodBarber makes available to the Client a technical support he can access from its account. To be duly taken into account, the Client is informed that any assistance request must be made in writing from the support tool designed for it.
ARTICLE 13 - TARIFFS
The applicable tariffs for the Services are available online on the site www.goodbarber.com.
The Services ordered are mentioned in the Order form; the prices are all taxes included and payable in Euro currency, except if stated differently.
GoodBarber reserves the right to modify pricing at any time, as long as the Client is informed by a E-mail or an online warning on www.goodbarber.com, a month before the new tariffs being less interesting for the Client come into force. In such case, the Client, from the post of such information, will be entitled to terminate the Contract without any penalties. If the Client remains silent, he is purported to have accepted the new tariffs. The pricing modifications apply on all and every ongoing contracts.
GoodBarber reverses the right to apply, without notice, any new tax or tax raise.
GoodBarber’s Service are payable at the Order, in advance. The Client has the responsibility of all payments related to the Contract. Except mutual agreement for a delay requested in advance, lack of payment or belated payment will entail without prior notice:
- the immediate payment of all remaining amounts due by the Client for the Contract, whatever the previously agreed means of payment;
- the suspension of all ongoing Service, whatever Service it is about, GoodBarber being entitled to terminate the contract;
- the impossibility to subscribe again or renew the subscription to the Service;
- the application of late payment interests until the day of full payment, based on 3 times the ongoing French legal rate.
Any claim about billing or the nature of the Service must be made in writing at the address email@example.com within a month after the issue of the Order form.
In the event GoodBarber has to pay collection expenses, it will inform the Client and will charge the Client back on the basis of the corresponding bill. The Client shall then reimburse GoodBarber the exact sum in Euro.
ARTICLE 14 - PAYMENT
The first payment takes place at the latest the 30th calendar day of the free Service trial period.
The Client may pay bycredit card only.
The Service subscribed by the Client is performed as soon as the first payment is made, subject to GoodBarber’s verification of the communicated information.
GoodBarber shall acknowledge receipt of the Order and the payment and will inform by E-mail of the performance of the Service ordered.
For any communication between the parties, the date and hour of GoodBarber’s server will make proof between the parties. This information is kept during the whole Contract.
Unless GoodBarber specifies it differently, the payment is made on a monthly, bimonthly, biannually, quarterly or annually (depending on the choice made by the Client) and no refund will be made.
In case of inaccuracy of the Client’s credit card details, whatever the reason, the Service may be removed and all the Data in the account could be deleted for good. GoodBarber denies any responsibility for the lost Data due to inaccurate Client’s banking details.
The Client shall maintain its banking details up to date, especially credit card details. A menu is dedicated to it in the managing interface of the account. It is accessible with username and password.
For any late payment late payment, GoodBarber will charge interests until the day of full payment, based on 3 times the ongoing French legal rate as well as collection expenses (the minimum being stated in a French Decree).
ARTICLE 15 - TERM OF THE CONTRACT
The Service is made available for the duration stated in the Order. GoodBarber may warn the Client by E-mail before the end of the Service.
ARTICLE 16 - DURATION – CONTINUATION OF THE SERVICE
Depending on the subscription made, the Contract is valid for a fixed one year period of time or a month with tacit renewal for another month being itself renewable for the same period of time at the same conditions.
Any late payment or irregular payment, that is an incorrect or incomplete payment or not mentioning the correct required references, or made by a means of payment non accepted by GoodBarber will be merely ignored and shall provoke the reject of the activation or renewal of the Service.
ARTICLE 17 - TERMINATION, LIMITATION AND SERVICE SUSPENSION
The Contract is terminated without prior notice, except in tacit renewal cases as stated above. In this last case, the Client must terminate the Contract by sending a letter with acknowledgement of receipt sent to the address stated in the legal notice at the latest one month before the term of the Contract.
Each party may terminate the Contract, without notice and right of compensation in case of force majeure lasting more than 30 days.
The Contract is terminated in case of a breach of the Contract by GoodBarber, not being fixed 7 days from the receipt of a letter with acknowledgment of receipt sent to the address stated in the legal notice. The date of notification of the letter stating the breach will be the date of the postmark, for the first presentation of the letter.
The Contract is terminated without prior notice in case of a breach of the Contract by the Client, from the sending of a letter with acknowledgment of receipt sent to the Client’s address.
At any time, GoodBarber may interrupt or suspend the Client’s Service if the way the Client use the Service endangers the security or the stability of the platform. A possible, GoodBarber may warn the Client previously.
Besides, GoodBarber reserves the right to interrupt or suspend the Service for a Client violating its obligation pursuant to article 9 “Client’s obligations” and especially if the Data infringes third parties’ intellectual property rights, violates other people’s rights (especially defamation, libel, slander, etc.), private life, public order, or in case of breach of good morals.
If necessary, GoodBarber may interrupt the Service for technical intervention aimed at enhancing or maintaining the Service.
ARTICLE 18 - OPERATING CONDITIONS
The Client acknowledges hereby that variation in bandwidth and other unexpected troubles in the Internet networks and/or hosting services may entail a temporary poor quality of GoodBarber’s Service.
ARTICLE 19 - SERVICE LEVEL AGREEMENT
GoodBarber undertakes the Service to be 99,9% accessible and in working conditions that is a maximum monthly unavailability 43 minutes 12 seconds per month. Should this availability rate not be completed, then Goodbarber undertake to pay penalties equaling 2,5% of the monthly amount billed to the Client, every 60mn of unavailability. This penalty doesn’t apply in case of the Client’s fault, or a third party’s fault, or force majeure.
The amount of the penalties paid by GoodBarber cannot exceed the monthly amount billed to the Client. These penalties compensate for all the damages related to the unavailability.
When the penalty rate occurs for a given month, GoodBarber withdraws it directly from the bill for the next period of time. In case of farer installments, the penalty is withdrawn on the bill of the next installment.
The foreseen unavailability for maintenance or any other reason exclude the penalty rate. For these predicted unavailability, GoodBarber informs the Client as follows:
- For over 60mn interruption, GoodBarber sends a notification by E-mail a minimum of 48 hours before;
- For interruptions inferior to 60mn, GoodBarber posts a notification in the Client’s managing interface.
ARTICLE 20 - WAIVER
Should GoodBarber not apply on the provision of this Contract, or tolerates a breach shall not be construed as a waiver for the said provision.
ARTICLE 21 - PERSONNAL DATA
The Client being a physical person, the User or the Guest acknowledges having a right of access, modification, deletion of his or her personal data by contacting GoodBarber by E-mail in the legal notice.
Personal data is kept as long as legally necessary for judicial proof. GoodBarber won’t sale such data to third parties other than commercial partners.
Concerning the Application itself, the Client acknowledges to be informed of Data protection formalities. The Client shall ensure compliance with the provisions of the French law on “Data protection and privacy” of January 1978 amended, and of any subsequent standard that may be enforced. The Client shall undertake to fulfill any steps that may be required to declare data with the French National Data protection and Privacy Committee (CNIL) or any equivalent National body. Generally speaking, the Client undertakes towards the Users, Guests, Authors and more broadly any client, prospects or contact to respect any local regulation and in particular to get prior consent for any distant prospection (“opt-in”), except if stated otherwise by law.
ARTICLE 22 - CONTRACTUAL HIERARCHY - MODIFICATION
The present general terms, the Order form and conditions and the legal notice form part of the whole Contract excluding any other document, E-mail, correspondence or buyer’s general term and conditions the parties may have disclosed before Order. Special provision on the Order form may contradict the general terms and conditions hereby.
Any modification or introduction of new subscription options will be posted on the GoodBarber website or communicated by E-mail to the Client. In such case, the Client may terminate the Contract within 30 days before the new conditions come into force, pursuant to article 16.
ARTICLE 23 - MISCELLANEOUS
23.1 Partial invalidity
Should any provision of this agreement be declared invalid, this will in no way affect the validity of the whole agreement or of another clause. In such case, the parties endeavor to replace the invalid provision by a valid one respecting the spirit and the purpose of the present general terms and conditions.
23.2 Lapsed claims
Any claim for liability against the GoodBarber lapses one (1) year after the event having generated the claim for damages.
GoodBarber may subcontract the performance of all the Services with any other party it chooses.
The Client accepts the use of its brand names and logos among the references used to promote GoodBarber’s business.
The titles of the articles hereby aim at facilitating the reading and are not binding by themselves.
ARTICLE 24 - JURISDICTION
EXCEPT IF THE CLIENT IS A CONSUMER IN THE MEANING OF THE FRENCH CONSUMPTION CODE, IN THE EVENT OF LITIGATION ARISING FROM THE INTERPRETATION OR PERFORMANCE OF THE AGREEMENT, THE TRIBUNAL DE COMMERCE D’AJACCIO (FRANCE) SHALL HAVE JURISDICTION NOTWITHSTANDING PLURAL DEFENDANTS OR RECOURSE TO AN IMPLEADER.
ARTICLE 25 - LAW
The Contract hereunder, correspondences and any document relating thereto, are governed by French Law. It applies for procedure rules and substantial rules alike, except for French conflict rules on the one hand, and other substantial rules on the other that may invalidate the Contract hereby.