App Showcase Agreement
CAUTION/NOTICE TO USER – READ THE TERMS OF THIS AGREEMENT CAREFULLY BEFORE SUBMITTING YOUR ACCESS REQUEST TO THE APP SHOWCASE: THIS AGREEMENT APPLIES TO YOUR ACCESS TO, AND USE OF, THE APP SHOWCASE AS APP DEVELOPER AND IS BETWEEN (A) YOU, THE LEGAL PERSON OR ENTITY THAT BY ITS AGENTS OR REPRESENTATIVES CONCLUDE THIS AGREEMENT AND (B) INGENICO TERMINALS SAS, A CORPORATION REGISTERED ON THE PARIS TRADE AND COMPANY REGISTER UNDER THE NUMBER B 538 600 412, HAVING ITS PRINCIPAL PLACE OF BUSINESS AT 28-32 BOULEVARD DE GRENELLE, 75015 PARIS, FRANCE, REPRESENTED BY ITS LEGAL REPRESENTATIVE.
BY CLICKING ON THE SUBMIT BUTTON OF THE SUBSCRIPTION FORM TO THE APP SHOWCASE REFERRING TO THIS AGREEMENT AND/OR BY USING THE APP SHOWCASE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO THE TERMS OF THIS AGREEMENT.
IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT DO NOT CLICK ON THE SUBMIT BUTTON.
INGENICO offers a service named “the App Showcase” to App Developers who want to promote their applications and services and enter into relation with Estate Owners and Merchants;
The App Developer wishes to have its applications and services promoted through the App Showcase to that end;
Now therefore the Parties agree as follows:
1 – Definitions
Terms used in this document with a first capital letter shall have the meaning ascribed to them in Appendix 1.
2 – Subscription Procedure
In order to apply for a Subscription to the App Showcase, the App Developer candidate shall fill-in the Subscription Form and a self-assessment.
Once the Subscription Form is submitted by the candidate in the App Showcase, INGENICO has fifteen (15) Days to check the compliance by the candidate with the Eligibility Criteria and ensure that all required information is provided by the candidate.
INGENICO reserves the right, in its reasonable discretion, not to approve the candidate Subscription request if the candidate does not comply with the Eligibility Criteria.
INGENICO reserves the right to ask the candidate to:
(i) Correct or complete any information provided or to be provided in the Subscription Form; and
(ii) Provide additional information so that INGENICO can appreciate compliance by the candidate with the Eligibility Criteria.
No later than the end of the above fifteen-(15)-Day period, INGENICO shall notify in writing to the candidate whether its Subscription request is approved or not.
Failure by INGENICO to provide an approval or refusal in writing within such period shall be deemed as a refusal by INGENICO to accept the Subscription request. In case of refusal of the Subscription request by INGENICO, the Agreement shall be deemed null and void.
3 – Purpose
This Agreement sets forth the rights and obligations of INGENICO and the App Developer with respect to the App Developer’s Subscription to, and use of, the App Showcase, as an App Developer of applications and online services.
4 – INGENICO obligations
In addition to all obligations applicable to INGENICO hereunder, INGENICO shall have the following obligations hereunder, subject to section 5 and 6 below:
· INGENICO shall, after validation of the Promotion Sheet, publish the Promotion Sheet on the App Showcase for promotional and information purposes, on the App Showcase partner webpage, in the format chosen by INGENICO;
· INGENICO shall maintain the App Showcase website available to Estate Owners and Merchants during the term hereof;
· INGENICO shall pass to App Developer the contact requests received by INGENICO through the App Showcase contact form, for the App Developer.
· INGENICO shall keep App Developer appraised of marketing events around the INGENICO partner program.
5 – App Developer obligations
In addition to all obligations applicable to the App Developer hereunder, the App Developer shall have the following obligations hereunder:
· The App Developer shall provide INGENICO with the App Showcase Promotion Sheet and Promotion Materials completed in the format prescribed by INGENICO;
· App Developer is entirely responsible towards third parties for the Apps and Services it Promotes on the App Showcase as well as for defining the price and terms and conditions relating to the sale and use of Apps and Services;
· App Developer shall comply with applicable laws and regulations of the countries where its Apps and Services will be Promoted; if the Promotion of the Apps and Services by App Developer requires a license, certification, or other authorization from a third party, organization or governmental authority, App Developer shall obtain such license, certification, or authorization prior to the submission and Promotion of the Apps and Services; INGENICO may, at any time, request the App Developer to provide evidence of such certifications, licenses or authorizations;
· App Developer shall comply with the requirements of the Development Rules;
· App Developer shall not develop, have developed, or promote any Apps and Services or other program knowing that such Apps and Services or other program would or would enable others to, in whole or in part, directly or indirectly perform one of the following operations: disable, bypass, break, hack or otherwise interfere with any security, signing, authentication or payment feature implemented in or by the Payment Terminals, or other INGENICO software, services or technology;
· App Developer shall ensure that collection, transmission, maintenance, processing, storage and use of Merchants’ customers’ or employees’ personal data performed by the Apps and Services comply with all applicable data privacy laws and regulations in the country(ies) where its Apps and Services is(are) Promoted;
· App Developer shall ensure that its Apps and Services and its Promotion Materials comply at all times with all applicable laws and regulations whatever the country of Promotion; in particular, App Developer shall ensure that the Apps and Services are not developed or Promoted for the purpose of violating the law or third parties’ rights, or causing a prejudice to any person or organization, and/or to facilitate or encourage any of the foregoing;
· App Developer shall ensure that the Promotion Materials are wholly owned by App Developer or licensed to App Developer in a manner that will not require INGENICO to pay any fees, royalties and/or sums to any third party or performing-rights bodies (including for copyright, author’s rights, neighboring rights, publication and emission rights, broadcasting rights and recording rights);
· App Developer shall ensure that the Apps and Services and the Promotion Materials do not contain or display any offensive or illegal content, or any other content that are, in INGENICO reasonable opinion, detrimental to INGENICO, INGENICO policies or INGENICO products or services, and/or to INGENICO image, and/or Estate Owners’ and/or Merchants’ image;
· App Developer shall provide commercially reasonable efforts to ensure that the Apps and Services are free of defects and do not contain any malicious or harmful code which could adversely impact or damage the Payment Terminals or any other software, product, systems, data, networks or services;
· App Developer shall provide technical and commercial support for its Apps and Services to Merchants and Estate Owners.
6 – Process of validation, evaluation and Promotion of Apps and Services
INGENICO may, for each Promotion of Apps and Services by the App Developer through the App Showcase, proceed to an evaluation of said Apps and Services before the Apps and Services are made available on the App Showcase.
INGENICO or its authorized employees shall accept or refuse a submitted Promotion Sheet within a fifteen-(15)-Day period from its receipt.
By default, if at the end of this period, no answer has been given to the App Developer concerning its Promotion Sheets, it will be considered as refused by INGENICO;
The acceptation of a Promotion Sheet for Apps and Services is not an endorsement by INGENICO of the responsibility regarding the compliance of the Promotion Sheet or Apps and Services with applicable laws or with the Development Rules, or regarding the quality, performance or fit for purpose of the underlying Apps and Services.
Any modification of the Promotion Sheet by App Developer shall be provided to INGENICO for review and such review shall follow the process of this section 6.
7 – Representations and Warranties
App Developer represents and warrants to INGENICO, and shall continue to represent and warrant to INGENICO during the term of the Agreement, that:
(i) it acts hereunder on its own behalf and account and not for the account or on behalf of any third party;
(ii) it has the lawful right to disclose the Apps and Services and Promotion Materials under these terms and that the Apps and Services and Promotion Materials do not, to the best of App Developer’s knowledge, infringe upon or violate any patent, copyright, trademark, trade secret or other proprietary right of any third party or of INGENICO, as well as any laws and regulations in effect in the countries where App Developer wishes to propose its Apps and Services;
(iii) it is responsible for all costs, expenses and liabilities arising out of App Developer’s activities and of the development of its Apps and Services, including the efforts done by App Developer upon INGENICO’s request or recommendation to render its Apps and Services compliant with the Agreement.
8 – Indemnification
App Developer shall defend, indemnify, and hold harmless INGENICO from and against all claims, costs, charges, damages, expenses whatsoever that INGENICO sustains or incurs from any third-party claims, actions, suits and proceedings arising out of:
(i) The use or integration by INGENICO of the Promotion Materials on the App Showcase in accordance with the Agreement;
(ii) Any breach by App Developer of any term of section 5 above;
(iii) The relationship between the App Developer and any third-party, including without limitation with the Merchants and Estate Owners;
(iv) Any claim that any taxes have not been invoiced, collected, paid or remitted by App Developer as required by applicable law.
9 – Non-exclusivity
Nothing contained in the Agreement shall prevent INGENICO from:
– developing, acquiring, proposing or marketing, either through the use of its own personnel or through third parties, products similar to App Developer Apps and Services, provided INGENICO does not violate App Developer’s rights; and/or
– promoting or accepting for promotion on the App Showcase, applications and/or services from third parties competing with App Developer or with whom App Developer would be in conflict in any respect.
10 – Term
This Agreement is entered into for 12 months unless it is terminated or cancelled according to its terms. It shall auto renew for periods of six (6) month each, unless terminated by either Party with a two (2) month prior written notice (including via email) sent to the other Party before the end of the current contract period.
11 – Termination
11.1 Termination events
The Agreement may be terminated forthwith, as of right, by either Party in case of any breach by the other Party of any of its material obligations under the Agreement which is not remedied within thirty (30) days from the receipt by the breaching Party of a termination Notification from the non-breaching Party, if the breach is capable of cure, or immediately upon receipt of such Notification if the breach is not capable of cure;
11.2 Consequences upon termination
INGENICO shall have the right to immediately remove form the App Showcase, all the Promotion Sheet(s) and all Promotion Materials of App Developer. Access by App Developer to the App Showcase account on the App Showcase website, if any, shall be terminated.
12 – Limitation of liability
INGENICO will not be liable for the Acts and omissions of App Developer and for any dispute between the App Developer and the Estate Owner and/or Merchants.
In no event shall INGENICO’s liability under the Agreement exceed, in the aggregate, whichever the number of claims, 10.000 euros.
Indirect or consequential damages such as loss of use, profit, revenue, earnings, image and/or clients are hereby expressly excluded.
13 – Changes
INGENICO reserves the right to modify any of the features of the App Showcase for technical, regulatory or other good reasons.
14 – Miscellaneous
Failure by any Party to enforce any of the terms or conditions of the Agreement, in any one or more instances, shall not be construed as a waiver of the future performance of any such terms or conditions.
In the event a court of competent jurisdiction concludes that any provision of the Agreement or portion thereof, is invalid, null, or unenforceable, such provision will be enforced to the maximum extent permissible to accomplish the initial intent of the Parties and the unaffected part of the Agreement will continue in full force and effect.
The rights granted in the Agreement may not be assigned or transferred by App Developer without the prior written approval of INGENICO. INGENICO may assign the Agreement to any company belonging to the group of companies to which INGENICO belongs, without App Developer’s consent, which App Developer hereby accepts in advance.
14.4 – Notifications
Any notices relating to the Agreement (“Notification”) shall be in writing or sent by email.
14.5 – Electronic contracting
Each Party acknowledges and agrees that all licenses and other agreements or contracts arising out of the use of the App Showcase, when concluded by electronic, are fully enforceable. INGENICO electronic records of such licenses, agreements, and contracts shall constitute admissible evidence thereof. Each Party waives any right to invoke the electronic form of the licenses and other agreements to question, reconsider or reject their validity or enforceability.
14.6 – Governing Law – Disputes
The Agreement shall be governed by the laws of France, to the exclusion of its conflict of law provisions. The Parties shall attempt to settle any dispute relating to the formation and/or the performance of the Agreement, amicably in good faith.
IN CASE THE PARTIES DO NOT REACH AN AMICABLE SETTLEMENT WITHIN THIRTY (30) DAYS FROM THE NOTICE FOR AMICABLE SETTLEMENT SENT BY EITHER PARTY TO THE OTHER, THE DISPUTE SHALL BE SUBMITTED TO THE COURTS OF PARIS, FRANCE, TO WHICH THE PARTIES GRANT EXCLUSIVE JURISDICTION.
Appendix 1 – Definitions
« App Developer » means the company which applies for a Subscription to the App Showcase as App Developer of digital applications or online services, to Promote Apps and Services on the App Showcase.
« Apps and Services » means software program specifically designed, developed, prepared, and signed according to the development and security rules of INGENICO, to run on a Payment Terminal, and associated services, proposed and Promoted by a App Developer through the App Showcase.
« App Showcase » means the INGENICO website access to which is granted to App Developer hereunder, for the Promotion of Apps and Services.
« Day » means when used with a first capital letter a business day from Monday to Friday when banks are open for business in France; when this term is used without a first capital letter, it means a calendar day.
« Development Rules » means the technical requirements applicable to the development, testing, update and functioning of Apps and Services, as prescribed by INGENICO.
« Eligibility Criteria » means the following:
· App Developer shall at least match with the following eligibility criteria in order to apply for a Subscription to the App Showcase:
o Be a company which activity is, in whole or in part, to publish software applications; and
o Be a company dully registered for this activity;
· INGENICO may condition the App Developer candidate Subscription to the App Showcase to:
o The absence of conflict of interest between INGENICO and this App Developer candidate;
o The absence of risk to undermine the image of INGENICO, and/or
o The compliance, according to the reasonable opinion of INGENICO, of the App Developer and its activity with INGENICO policies.
· App Developer has agreed to the terms and conditions for the use of the applicable INGENICO SDK for the development of applications.
« Estate Owner » means an owner of an estate of Payment Terminals used by it or by Merchants;
« Merchant » means a business which uses Payment Terminals to accept payments for its business.
« Party » means a party to the Agreement, i.e.: INGENICO or the App Developer having accepted these terms at the time of its Subscription; « Parties » will be interpreted accordingly.
« Payment Terminal » means a payment terminal manufactured by or for INGENICO.
« Promotion Materials » means the marketing materials provided by the App Developer herein for the Promotion of Apps and Services.
« Promotion Sheet » means the digital sheet presented on the App Showcase, accessible by the Estate Owners and the Merchants, presenting to them the features of its Apps and Services.
« Subscription » means the subscription to the App Showcase by App Developer, approved by INGENICO, according to these terms; “to Subscribe” shall be interpreted accordingly.
« Subscription Form » means the online form, or the form provided separately by INGENICO, filled-in by a candidate when it applies for a Subscription, and which refers to these terms.