Disclaimer: If you wish to become a Customer, you must read and accept these T&Cs as part of the registration process. In order to become a Client, you must be a merchant who own a private business entity operating within your chosen field of profession and business framework. You can also become a Client on behalf of a Company which complies with the aforementioned statement. In this case, you must provide Youding with your Business Patent within three (3) months of signing your Agreement with Youding.
YOUDING’S TERMS AND CONDITIONS
The use of Youding’s Products and Services implies your expressed and unreserved acceptance of our T&C. The Customer acknowledges having accepted the T&C prior to placing his order, as they have read and understood the laid out terms and agrees to be bound to them by signing the agreement (electronica signatures included). The T&C will always form a part of any other contract agreements issued by Youding and signed by the Customer as well as any other general or specific conditions applicable to the use of Youding’s Products and Services. In the event of a conflict between any specific stipulation within T&C and any other documents which may come in the form of quotation, order form, agreement or any other document, noted specific stipulation(s) within the documents outside of the T&C will prevail over the one specified within the T&C.
Article 1. DEFINITIONS
“Application” refers to the mobile software application published by Youding, intended for Customers’ access to certain features of Youding’s service;
“Back-Office” refers to the dedicated space permitting access to Youding’s services, made accessible from the Site or any other Youding platform;
“Client” means any legal person who has subscribed to Youding’s Products and Services for professional purposes;
“T&C (Terms and Conditions)” refers to general conditions that applies to the use and sale of Youding’s products and Services;
“Contract” refers to the CGUV in combination with any other documents including but not limited to quotations, order forms, and, more generally speaking, any special conditions laid out in other contracts/agreements prescribing the commercial relationship between the Customer and Youding;
“Personal Data”, as defined by the Regulations pertaining to Data Regulations, is any personal information relating to person that can be identified, either directly or indirectly, on the internet including identification numbers amongst others;
“Assignor Institution” means any credit institution or finance company, or any other entity to which Youding has decided to transfer its rights and obligations under the Contract to;
“Party(ies)” means the Client or Youding individually or the Client and Youding collectively;
“Products” means all materials and equipment marketed by Youding, which can be provided to Customers to enable the use of Youding’s Services;
“Personal Data Regulation” means any provision or legislative of a regulatory nature, which protects an individual’s personal data and the free movement of such data, which touches on data processing, files as well as freedoms and its various applications.
“Network” means the Customer’s process which includes installing a device to transmit and/or receive telecommunications signals and digital information from the Customer’s own physical site(s) to a public Internet network;
“Services” means all software (i.e. the Application and the Back-Office) made available to the Client by Youding to facilitate the collection, automation, analysis and transactions of said customer’s points of sale, as well as related Services (such as maintenance, updates and Customer Service);
“Customer Service” means the specialized team within Youding responsible for responding to Customer requests concerning the Products and Services said customers have subscribed to;
“Site” refers to the website published by Youding and is made accessible at the address www.youdingapp.com;
“Information System” refers to all of a Party’s resource (hardware, software, equipment, etc.) which permits the collection, storage, structuring, modelling, management, manipulation, analysis, transport, exchange and dissemination of information (texts, images, sounds, video, etc.);
“Youding” means MAHALO Limited, a company incorporated under the laws of Hong Kong, having its registered office at Unit 702, 7th Floor, Tung Hip Commercial Building, 2244 Des Voeux Road Central, Hong Kong; Mahalo ltd is a software publisher, service provider and seller of computer equipment allowing the use of the Products and Services.
ARTICLE 2. PURPOSE
The purpose of this T&C is to define the conditions under which Youding enables customers to use its Products and Services. It cancels and replaces all oral or written agreements that may have been concluded previously between the Parties. The T&C is always made accessible to Customer, with the most current version posted on the Youding Site. Youding may, in addition, choose to establish categorical general conditions of sale, derogating from the T&C, depending on the type of customer. Customers who meet these criteria will be subjected to consideration with the resultant categorical T&C. The T&C may be subject to modifications under the conditions described in Article 19.
ARTICLE 3. CUSTOMER REGISTRATION – ACCESS TO SERVICES
3.1. Necessary and prerequisite conditions for registration
To be able to benefit from Youding’s Services and Products, the Customer must declare and guarantee that they indeed exercise a social, commercial, or independent professional activity and prove his/her/their relation to said professional activity. The Client must provide their qualifications to the aforementioned as part of the process of entering into a contractual relationship with Youding and any change in status thereafter must be notified to Youding without delay by their chosen registered mail. The signatory of the Contract acknowledges their acceptance to be the duly authorized representative of their company and to be tied by the contract.
3.2. Registration procedure – Opening a Client Account
To be able to benefit from Youding’s Products and Services, the Customer must first provide all information and documents requested (such as a copy of the signatory’s ID, Business Patent, and bank statement/identity card containing the Customer’s IBAN) by Youding. These documents are perquisites to Youding authorizing clients access to our Products and Services. Related to this, client must provide Youding with accurate, complete and the most recent information. It is also the Customer’s responsibility to maintain confidentiality of their account’s password. Thus, the Customer acknowledges that any connection made to his/her/their account on Youding’s app and/or Back-Office using the client’s ID and password will be deemed to have been made by the Client himself/herself/themselves. In the event of the illicit use, piracy or counterfeiting of its Products and Services, Youding reserves the right to interrupt or deny the Client access to its Services. This interruption will not give rise to any compensation for the Customer and a foregoing of any sum due under the Contract. The Customer must also keep their information as updated as possible. To do this, the Customer may send an email to Youding’s Customer Service at email@example.com The Customer must also ensure that their employees erase their usernames and passwords in the case of significant occurrences (for instance, should a departure or change in the employee’s status and/or position occur). The Customer is solely responsible for the direct or indirect damage that he/she/they is/are likely to suffer in the absence of updating of their information. In the event of the Client forgets their password and/or username, the Customer must immediately seek to modify said information by following the procedure described in the Back-Office. In the event this is not possible or ends in failure, the Customer must immediately contact Youding’s Customer Service Team at firstname.lastname@example.org
3.3. Information system security
The Customer, throughout the duration of the Contract, should seek to install all updates recommended by Youding on its Products and Services. The Client should also seek to meet Youding’s minimum configuration requirements and its Information System whenever necessary. Concerning their operating Information System, the Customer should undertake all steps to use software from official sources and take all appropriate measures to protect themselves from violations. Youding cannot be held responsible for the Customer’s difficulties in accessing Youding’s Services if these difficulties prove to be the consequence of the Customer’s failure to comply with Youding’s recommended settings / software versions / updates / hardware.
ARTICLE 4. DESCRIPTION OF THE OFFER(S)
Youding retails its Services in the form of a monthly subscription to be paid throughout the duration of the Contract. The Customer is free to choose from a number of contractual durations for the various offers, services and benefits Youding provide in accordance with their own commercial activity. In return for subscribing to its Products and Services, Youding allows the Client to benefit from the following services for the entire duration of the Contract: right to use the Application and BackOffice, maintenance and updating of the Application and Back-Office as well as access and use of Youding’s Customer Service. The Customer may also decide to subscribe to additional modules as well. Any new subscriptions will subsequently be updated in the Contract and adjusted within the invoice. These additional modules will immediately be added to the Customer’s subscription the moment they are subscribed to.
ARTICLE 5. MARKETING OF PRODUCTS AND SERVICES
5.1. Placing Orders
The Customer’s order for Youding’s Products and Services is validated by their signature on the Contract that Youding may offer them via by either physical or videoconference means. This validation is affirmed by the Customer’s handwritten signature on to the Contract or by the Customer’s electronic signature set through electronic document management application. The validation of the Contract also implies express acceptance of the T&C. All orders are firm and final. In the event of the unavailability of a Product and/or a Service subscribed to by the Customer, Youding will notify the Customer as soon as possible and will endeavor to find a satisfactory solution for the Customer. In the event that Youding is obliged to substitute a Product and/or a Service which is no longer available on the date the Contract is signed by the Customer, any differences in price will be noted on the updated invoice which will provided to the Customer. In the event payment exceed the amount mentioned in the credit (as the final service proves to be less expensive than the total specified on the Contract initially), a refund in one form or another will be provided to the customer.
5.2. Provision of Services and Products – Retention of title
The Products stated to be sold to the Customer under the Contract will remain the property of Youding until the Customer makes payment of the amount prescribed (including corresponding taxes).
5.3. Product Delivery
The Products purchased by the Customer noted under the Contract are delivered to the delivery address indicated by the Customer when placing their order. Except for force majeure cases and limited available stocks at Youding’s or its suppliers’, said Products are delivered within an average period of 15 (fifteen) days from receipt of the Customer’s first payment for the Products and the Contract being signed. The delivery time will correspond with the processing times relating to the validation of the Customer’s payment, the ordering of the Products, the configuration of the equipment, the preparation of the package and the shipping of the package. Youding cannot be held accountable for a delay in delivery of the Products. In addition, the Customer agrees not to engage in holding Youding liable in the event that the delivery time does not exceed 60 (sixty) calendar days from the receipt of the first payment for the Products. The Customer is required to provide a precise delivery address allowing Youding or one of its subcontractors to easily access the Customer’s premises to deliver the ordered products. The Customer must also undertake the necessary steps to make themselves available to receive the Products shipped by Youding at the times set by Youding or one of its subcontractors.
If one or more Products cannot be delivered to the Customer due to his absence on the day and time proposed by Youding or one of its subcontractors, this postponement of delivery will not be counted within the maximum period of delivery of 60 (sixty) days specified above and Youding will not be held responsible for this delay. In the event that one or more Products are returned to Youding due to an incorrect and/or incomplete address being submitted by the customer or due to the absence of the Customer, the latter must pay the costs of reshipping said Products in order to trigger a new delivery. This postponement of delivery will also not be counted in the maximum delivery period of 60 (sixty) days specified above and Youding will again not be held responsible for this delay. Upon receiving the delivery, the Customer must undertake steps to check the condition of the Products. If they have been damaged or if the original packaging is damaged, torn or opened, the Customer must imperatively refuse the package and note a reservation on the delivery slip, specifying the words “parcel refused because opened or damaged”. The Customer must also undertake steps to annotate the delivery slip with his duly signed reservations relating to any anomaly concerning the delivery (damage, product, damaged package, etc.). This verification will be deemed to have been carried out from the moment the Customer, or a person authorized by him, has signed the delivery note. The Customer must then confirm by their registered mail their reservations to the carrier within a maximum period of 2 (two) working days following their receival of the Product(s) and by sending a copy of the aforementioned letter to Youding by email at the support address email@example.com. In general, any complaint concerning an error or difficulties relating to the delivery and/or installation of the Products must be sent by email to the address firstname.lastname@example.org to Youding within the allotted maximum period of 2 (two) working days following receipt of the Product(s). Failing this, the Customer is deemed to have accepted the delivery without reservation.
5.4. Customer service
As part of the provision of its Services, Youding offers its Customers the possibility of accessing Customer Service by sending an email to the address email@example.com Once a customer’s request has been received by Youding’s Customer Service Department, the Customer will receive an acknowledgment of receipt attesting to the consideration of their request. The Customer can also contact Customer Service by opening a “chat” session from the Application or the Back-Office. The Customer will then be placed in direct contact with the Customer Service team during Youding’s operating hours. Each Customer Request will be subjected to a unique identifier, whereby the Customer can and should voice as much detail as possible to speed up the processing of his request. This unique identifier also guarantees perfect coordination amongst the Youding teams to satisfy each Customer request as soon as possible.
5.5. Proof of transaction
The majority of Youding’s exchanges with its Customers are carried out through its Information System(s). The Client accepts and acknowledges that Youding’s Information System(s), whereby user data is kept in accordance within regulations, is authorized for use, in particular to provide proof of commercial transactions in the forms of quotations, orders, payments, invoices or requests made to Customer Service.
ARTICLE 6. CONDITIONS FINANCIÈRES
The price of the Products and Services will be made clearly visible on the day the Contract is signed and/or the renewed. In the latter case, any price changes will be included in the new Contract. The prices of the Products and Services on display are exclusive of taxation, delivery, and installation costs. If the tax rate were to be modified during the term of the Contract, the changes would be immediately reflected in the invoices and payments without the Customer necessarily being informed in advance.
The Customer may benefit from discounts provided on the pricing of the Services they may subscribe to. These discounts may often be one-off offers provided throughout the year or be introduced to help persuade a particular Client from committing to subscribing to Youding’s Services for a significant period of time. In all cases, the amount of these discounts will be specified in the Contract.
6.3. Payment methods
The terms of payment are defined in the Contract binding the Client to Youding. The Customer agrees to pay in the currency of the country in which he has subscribed to the Products and Services. When signing the Contract, the Customer is free to choose the means of payment from the following options: bank card (Visa, Mastercard, American Express), SEPA direct debit. Payments made by cash, by check or by bank transfers are not accepted by Youding. However, in the event of non-payment, Youding’s collection teams may occasionally and exceptionally consider other means of payment, such as payment by check or bank transfer. In the event that the Client chooses a financing offer for Youding’s Products and Services operated by a third-party financial organization, the Client acknowledges and understands that in this situation, the third-party financier mandated for this purpose would become the new holder of the Contract and that this third party would become the Customer’s sole contact for invoicing and payment. No unique discount will be granted in the event of early payment (payments made before payment deadlines). Payment for the Products is due on the date validated on the Contract by the Customer. Payment for the Services is typically due (i) either 7 (seven) days after the effective date of commissioning, i.e. the date from which Youding’s Information System detected use of the Services by the Customer or the date by which the Parties have agreed to record the effective commissioning of the Services, (ii) Anytime between 7 days after the delivery of the Products or 7 days after the Customer has commissioned their purchase of the Youding’s products and services and signed their contract. If the Customer benefits, with the written agreement of Youding, from monthly invoicing of the Services and/or from the spreading of the payments of the Products and Services in several monthly instalments, Youding will debit the sums due on the 1st day of each month, in the event the subscription to the Products and/or Services is made before the 15th of the month. Debits will take place on the 15th of each month in the event the subscription to Youding’s Products and/or Services occurred between the 15th and the last day of the month.
6.4. Payment period
The Customer agrees to pay all the sums mentioned in the Contract within the time limits provided. Unless otherwise stipulated in writing on the Contract, the payment of the sums due for the Products and Services is immediately made at the signing of the Contract.
6.5. Late payment
In the event of a late payment, the Customer will be liable for the payment of a lump sum as prescribed by Youding, as well as any further late payment penalties, without any prior reminder by Youding requried, in addition to any further costs, including but not limited to legal fees incurred for the recovery of sums not paid by the Customer and the bank charges borne by Youding. Furthermore, the interest rate for late payment penalties is equal to the rate applied by the host nation’s Central Bank plus 10 percentage points.
ARTICLE 7. COMMISSIONING, TERMINATION AND SUSPENSION OF SERVICES
The Services may be used by the Customer after (i) validation of the Contract, (ii) the first payment for the Products has been made, (iii) the installation of the Products and training has been provided. In the absence of a specific agreement between the Parties concerning the effective date of commissioning of the Services, the Services shall take effect in the following order of priority:
• 7 (seven) days after the effective date of commissioning, i.e. the date from which Youding’s Information System detected use of the Services by the Client;
• 7 (seven) calendar days after the delivery of the Products; Where
• 7 (seven) calendar days after the desired date of commissioning by the Customer.
The Customer, acting in a professional capacity and for the purposes of his main and usual professional activity, expressly acknowledges and accepts that he does not have a right of withdrawal. By way of exception, if the Contract is concluded off-premises, if it does not fall within the Customer’s main field of activity, and if the latter does not employ more than five (5) employees, the Customer has a withdrawal period of 14 (fourteen) days from the date of validation of the Contract, right that he can exercise by sending Youding a letter of withdrawal by mail with acknowledgment of receipt.
The Contract takes effect for the duration stipulated in the Contract or the order form, will correspond and be recognized as the initial period. At the end of this initial period, to avoid any discontinuity in the Service, the Contract will be tacitly renewed for a successive period of 12 (twelve) months under the same conditions as the initial period, except for the event of that changes are made in the conditions. In this case, the changes will be notified to the Customer before the end of initial term or during renewal period.
The Customer may terminate the Contract by mail with acknowledgment of receipt at the end of the initial period or of each renewal period subject to their compliance with providing a notice during a period of three (3) months before the initial term or before the end of the renewal period. The Customer must notify Youding of his request for termination by the registered letter with the acknowledgment of receipt, respecting the notice mentioned above. The termination date used will be the date Youding receives the termination letter sent by the Customer. Each Party may also terminate the Contract, at any time, without compensation if there is a breach of any stipulations within the contract by the other Party, and the issue of the breach has not been being within 60 (sixty) days.
Two (2) months after the end of a Contract, the Customer may request in writing from Youding a copy of the last backup data hosted by Youding. Youding will in return provide the Customer said report in a structured and commonly used format readable by any terminal. This restitution will be carried out in the form of a file sent for download or, should the volume of content prove too large, be hosted within an external medium. In the latter case, all costs (external support and secure shipment) will be borne by the Customer. Youding will delete the Customer’s hosted data from its servers no later than one (1) year after the end of the Contract. This deletion will not concern data that must be kept for a longer period in execution of a legal or contractual obligation or for those envisaged in article 9.4 of the T&C.
7.5. Suspension of non-payment cases
In the event of non-payment, Youding may suspend the provision of the Services, subject to the provision of three (3) days’ notice via email. In this case, the Customer will also be required to grant Youding access to the Products, to enable Youding to proceed with their uninstallation and recovery process. In the absence of any payment, as per noted within the invoice, within thirty (30) days following the suspension of the Services by Youding, the Customer understands and accepts that Youding may take measures relating to the process of backing up, transferring, copying and/or destroying their data. The resumption of service following a suspension involves fixed costs and can take up to 3 (three) working days from when Youding receives the sums owed by the Customer. The recommissioning fee must be paid prior to the recommissioning process for this procedure to be initiated.
ARTICLE 8. USE OF THIRD PARTIES
To meet its contractual commitments, Youding may at any time call on the assistance of a subcontractor. The Customer will accept this decision without reservation. Should this case arise, the subcontractor will be subjected to the same obligations as the Customer, particularly in concerning the subject of data confidentiality.
ARTICLE 9. PROTECTION OF PERSONAL DATA
9.1. Respective qualifications of the Parties
The Parties acknowledge that they are in full awareness of their obligations pertaining to the Personal Data Regulations, which apply to them within the context of the following qualifications:
• Youding and the Client are independent controllers of the Personal Data processed for the purposes of managing their commercial relations with each other;
• Youding is responsible for the independent handling of the Personal Data processed for the purposes of the administrative, commercial and technical management of the Products and Services (in particular the management of the utilization and navigation of the Application and the Back-Office, the management of the Customer’s registration process and said created Customer accounts, as well as the management of the Customer Service process amongst others);
• the Customer is responsible for the independent handling of the Personal Data processed for the purposes of utilizing the Products and Services. Within the context of this handling process, Youding will act as the Client’s subcontractor, as Youding will ensure, on behalf of the Client and in its documented instructions, the provision of the Products and Services (including hosting) and their maintenance.
The Client acknowledges and accepts that Youding, in its capacity as an independent data controller, may also obtain, aggregate and anonymize data of any kind, including Personal Data, relating to the Client themself (including professional contacts within of the Customer’s personal morality) and/or its customers and/or data relating to the operation and use of the Products and/or Services to improve its Products and Services and their security, as well as any data which could contribute to market analyses, statistical reproduction and analysis, best industrial practices and/or recommendations and/or activity reports for the benefit of the Client themself and/or any of Youding’s other client and/or prospect.
When Youding is required to access, manage or even, more generally, process Personal Data, in its capacity as a subcontractor acting on behalf of the Client, it agrees to:
• to process the Personal Data concerned only for the sole needs and purposes strictly provided within the T&C and to act only on documented instructions from the Client;
• provide the Client with sufficient guarantees concerning the implementation of the appropriate technical and organizational measures so that the process of handling the concerned Customer’s Personal Data meets the requirements of the Personal Data Regulations, in particular when it concerns the ability and skill level of the personnel that Youding assigns to the Client to handle this particular task;
• guarantee the security of the premises, information systems and the processing of the concerned Personal Data, so as to prevent the destruction, loss, alteration, deformation (as well as any other types of modification), hacking, misappropriation, damage, access by unauthorized persons or disclosure of Personal Data to which Youding will have access to, stores or, more generally, process in any way whatsoever, on behalf of the Client;
• make available to the Customer the information or documents that the Customer has expressly requested, to enable the latter to demonstrate their compliance with their obligations under the Personal Data Regulations, in particular:
◦ by providing news to the Client as soon as possible, in the case that any instructions they’ve given to Youding may likely to constitute a violation of the Personal Data Regulations;
◦ by collaborating with the Client in carrying out any impact analysis relating to the processing of Personal Data selected by the Client;
◦ by allowing the Client to carry out, if necessary and to a reasonable extent, audits (including inspections) either directly or through an independent external service provider to ensure compliance with Youding’s obligations under the T&C. Equally, Youding must also be notified by the Client at least seven (7) working days before the date of the audit;
• notify the Customer of any violation of Personal Data within a maximum period of seventy-two (72) hours after becoming aware of it and accompanying this notification with any useful documentation, in accordance with the General Regulations on Personal Data;
• should they be able to do so, respond to any Customer request as soon as possible concerning the subject of their ability to exercise their rights of access, modify, and erase data, and where applicable the limitation, opposition or portability, or even withdrawal of their consent.
• ensure that any transfer of Personal Data to another recipient has obtained the Client’s prior and expressed agreement and that this transfer is subject to the acceptance of the host nations’ legal parameters or, failing that, appropriate safeguards that accounts for the Personal Data Regulation (for example, standard contractual clauses or binding corporate rules, as well as, where applicable, an analysis of the impact of the capacity of the legislation of the third country to guarantee the effectiveness of the rights granted to data subjects under these appropriate safeguards);
• at the end of the contractual relationship, given the Client’s approval, delete or fully restore the Personal Data concerned and, under no circumstances, keep any copies of and no longer use any of the Client’s Personal Data for any reason whatsoever, unless said Data has been archived or retained is under applicable laws and/or regulations;
• ensure that any company that succeeds Youding, as well as any potential subcoractor, complies with Youding’s obligations as per stated in the contract, regardless of their level of involvement and intervention. They should in particular choose to accept said obligations expressly stated in the contract which binds Youding to said company, so that they respect the obligations of Youding as per provided in this article, with the latter remaining solely responsible for any breaches made in the contract by subsequent subcontractors.
Certain requests will be billed based on time spent per customer.
The characteristics of the Personal Data handling process carried out by Youding, as a subcontractor, are as followed:
|Purpose of processing||Purposes have been provided in this T&C (provision of Products and Services, hosting, maintenance)|
|Categories of Personal Data||– Data provided by the Client (identification data, contact details, banking, and financial data, etc.);|
– Data generated by the use of the Products and Services (browsing and usage data, etc.)
|Categories of data subjects||– The Client himself (person|
professional contact made by the Client
(including with Corporations);
– The Client’s employees;
– The Client’s clientele
|Duration of processing / Duration of storage of Personal Data||Time of the contractual relationship|
+ 1 year. The customer is responsible for providing backups for the legal duration.
|Categories of recipients||Youding and its staff, authorized Subcontractors of Youding, Said individuals are able to access the system for exclusively technical or logistical needs|
ARTICLE 10. YOUDING’S RESPONSIBILITY
10.1. Youding’s Liability in the Selling of its Products
The Products governed by this T&C, which will also be prescribed to in the contract, are those to which the Customer will be able to subscribe to. The visuals of the Products accessible on the Site have no contractual value and are therefore not something which Youding will be bind to. The Products offered by Youding will also be influenced by their availability in stock, therefore Youding cannot be held liable by the Customer in the event of the unavailability of a Product. Youding guarantees the Customer a period of ten (10) days from the dispatch of the Products to report any lack of conformity and any hidden defects within the products, resulting from a defect in the design or supply of said Products, notwithstanding any negligence or fault caused on behalf of the Customer. The warranty covers any non-compliance within the Products ordered and any hidden defect, resulting from a material, design or manufacturing defect which could affect the delivered Products and thus rendering them unfit for use. The Products must be checked by the Customer on delivery, and any complaint, reservation or dispute relating to missing items and apparent defects must be made under the conditions set out in the articles above. In the event of apparent defects, the defective parts will be replaced by Youding, subject to verification of the alleged defects. The Customer must provide any justification as to the accuracy of the defects observed, Youding reserves the right to proceed, directly or indirectly, to conduct any additional observation and verification on site. The denunciation of defects existing at the time of delivery, and revealed after receipt of the Products, must be made by the Customer in writing within five (5) days of the date, which they discovered the lack of conformity. No denunciation will be considered if it occurs more than five (5) calendar days from the dispatch of the products. Any notification must also mention any further referenced information as well as the dates of the corresponding Contract and delivery. Action for non-compliance may not be initiated by the customer more than five (5) days after the delivery of the Products. It is expressly agreed by the Customer’s decision to accept the Contract that after the expiry of this period, the Customer may not invoke any non-conformity clause concerning the products, nor be able to oppose the Product as a means of counterclaim to defend themself when any debt collection action is initiated by Youding. In the event of a defect, Categories of persons concerned will include the Customer himself (legally binding person) or the Client’s professional contact(s) (legally binding person); the Client’s employees, who will all operate within the confine of The Client’s Duration of processing / Duration of retention of Personal Data across the contractual relationship + 1 year duration. The customer is responsible for providing backups during the legal period. Should the personnel listed within the Categories of Youding recipient and its authorized personnel subcontractors for use of the Youding System for exclusively technical or logistical needs, which were hidden and previously unknown at the time of sale, may have rendered the Product unsuitable for its normal usages, the Customer is required to notify Youding of the occurrence within thirty (30) calendar days of said discovery. Notification of this must also mention the referenced information as well as the dates of the corresponding Contract and delivery. It is up to the Customer to provide any justification to the causes of the defects that have occurred and their consequences on the intended use of the Product. Youding reserves the right to proceed directly by itself, or through any intermediary of its choosing to any observe, verify and examine the Customer’s premises. When the fault or hidden defect has been recognized by Youding, Youding accepts to either provide a direct refund for the Product or to replace said Product with the exact same model exclusive of any damages. The Customer is required to carefully read the notices relating to the technical characteristics of the Products provided by the manufacturer of the Products and to strictly respect the conditions of use defined by the latter. The Customer will be solely responsible for any consequences resulting from non-compliance with the conditions of use, abnormal use of the Products and/or abnormal or inappropriate storage conditions, to which Youding will not be held liable for.
10.2. Youding’s Liability in the provision of the Services
Youding provides a Services, which should be recognized as a support tool. The Services can never replace the administrative and managerial functions and obligations of the Clients. As such, the information, whether commercial, financial, legal, or of another nature, provided by Youding does not constitute advice. Youding will guarantee the Customer against any lack of conformity and any hidden defect within Services, resulting from a defect in the design or supply of said Services, exclusive of any negligence or faults caused by the Customer. Youding makes it a regimental to pay particular attention to the quality and security of its infrastructures, and particularly the use of technical architectures which can guarantee a high level of security and use of its Services. Youding do not guarantee permanent access to its Services, trouble-free operation, nor the accuracy and integrity of the data transmitted or downloaded through use of its Services. Youding’s liability can only be validly engaged provided that the Customer demonstrates the existence of a fault attributable to Youding, as well as provide a causal link between the fault and the damage. Furthermore, the Customer is also solely responsible for verifying and validating the accuracy of the data of the means of their payment and the VAT rates that apply. Youding cannot be held liable in the event of problems related to the Customer’s means of payment occurring. Youding does not guarantee that the Services will allow the Client to achieve their expected results or achieve their desired objectives. More generally, Youding does not guarantee that subscribing to the Services will improve the performance of the Client’s activity. The Customer shall be solely responsible for (i) their access to and use of the Services, including those by their users, (ii) the security and protective measures taken for their Products and (iii) the data they stores through in Products and Services. The Client indemnifies Youding (and its affiliates and subsidiaries and their officers, directors, employees, agents) against any claim or demand, including reasonable attorneys’ fees, made by a third party as a result of their breach of the T&Cs, their misuse of the Services or the violation of any law or the rights of a third party. Youding’s liability will in any case be strictly limited to direct, certain and foreseeable damage, excluding any indirect, hypothetical or unforeseeable damage as well as any cases limited to the amount actually accumulated by Youding during the duration of its contractual relationship with the Client.
SECTION 11. SECURITY
Youding pays particular attention to security during the development of its Services and have undertaken all necessary measures, including use of the state-of-the-art technology, to protect the security of its Customers’ files and data. All transfers between the elements installed at the Customer’s premises and the Youding Information System are encrypted. The Customer acknowledges, however, that even despite all of Youding’s efforts, including the use of the most modern technologies and compliance with the latest security standards, it is still impossible to guarantee absolute security and faultless operation of the systems used. The Client also acknowledges that due to the characteristics of the Internet, Youding only undertakes an obligation of means in terms of security. In particular, Youding cannot be held responsible for the unavailability of the Application, the Back-Office and/or the Site as result of its service providers and subcontractors.
ARTICLE 12. CONFIDENTIALITY
ARTICLE 13. INTELLECTUAL PROPERTY
The Application, the Back-Office, the Site, and more generally, the technology and the underlying software of the Services and the Youding Information System, which in its capacity also includes ergonomic materials (which consist of graphic charters, tabs, functionalities, etc.) in addition to numerous other content (including images, logos, illustrations, photos, texts, etc.) will always, remain the exclusive property of Youding. For the term of the Agreement, Youding will grant the Customer a non-transferable, non-exclusive, non-sublicensable, and revocable limited license to access its Services for personal and non-commercial use, as well as any additional software underlying its Services, solely for the purpose of using the Services in accordance with the T&Cs. All intellectual property rights remain the property of Youding. The Customer agrees not to copy, modify, enhance, translate, rent, lease, sell, assign, distribute, decompile, reverse engineer, grant security interest, or otherwise transfer any rights concerning the Application, the Back-Office, the Site, and more generally, the technology and underlying software of Youding’s Services and Information System. Any reproduction, representation, or exploitation of any kind whatsoever, by any process whatsoever and for any purpose whatsoever of all or any part of the Services and/or the Information System (including its structure and/or content), without the prior written authorization of Youding, constitutes an act of infringement which could give rise to potential civil and/or criminal penalties in accordance with the law. The Client also undertakes responsibility to inform Youding of any infringement or counterfeiting of said intellectual property rights by third parties as soon as they become aware of it. Youding is the sole owner of the rights to its trademarks and logos and no use of the aforementioned content is authorized for use without Youding’s written consent. At the end of the Contract, for any reason whatsoever, the license granted to the Customer for use of the Services will be terminated without notification from Youding.
ARTICLE 14. SALE OF FUNDS – CESSATION OF ACTIVITY – SETUP MANAGEMENT
The Services made available by Youding are non-transferable, unseizable, and cannot be transmitted to anyone or moved outside its usual premise of use. They cannot be included in the cessation of any activities. In the event of a sale made with the intent of goodwill or to contribute to a company, management, cessation or modification of activity, the Customer must notify Youding by registered letter, with acknowledgment of receipt, within 48 (forty-eight) hours of the change in legal situation. In the event of a transfer made under the intent of goodwill, the initial Contract is tacitly renewed in accordance with the article above between Youding and the Customer and will automatically continue with the transferee. The assignor is required to include a continuation of the contract clause in the deed of the transfer made under the intent of goodwill. In the absence of this clause in the deed of assignment, the Customer remains liable to Youding for all compensation provided for in the event of early termination of the Contract. In any event, Youding reserves the right to refuse the transfer of the Contract regardless of the terms. In the event of dissolution following a merger, absorption, modification of the legal form or articles of association, the acquiring or new company will be purely and simply subrogated in the rights and obligations of the dissolved company. In the event of sale made under the intent of goodwill, contribution to a company, management, cessation or modification of activity, the transferee will be invoiced the amount of the commissioning costs to cover the cost of reconfiguring Youding’s Products. and Services relating to the transfer of its license to the transferee.
ARTICLE 15. MARKETING AND COMMERCIAL COMMUNICATIONS
Unless they expressly choose to stop receiving any further marketing material from Youding at their own risk, the Customer will receive communications from Youding and be kept informed of Youding’s offers, any changes to the Services as well as the holding of specific events. The Customer has the option to modify the information he wishes to receive and/or to unsubscribe using the link provided for this purpose in each piece of communication addressed to him at any given time.
ARTICLE 16. REFERENCES
The Client, as a Client of the Service, authorizes Youding for the entire duration of the Contract to quote its name and reproduce its trademarks and distinctive signs as well as to publish them by any means, or on any medium exclusively for commercial purposes.
ARTICLE 17. FORCE MAJEURE
Neither parties shall be held liable if it becomes impossible to execute the T&C because of force majeure occurrences as defined in article 1218 of the Civil Code. In such a situation, the Parties will come together to evaluate the impact of the event and agree on the conditions under which the contract may be continued. If the force majeure case lasts longer than a period of three (3) months, the T&C may be terminated by the injured Party.
SECTION 18. WAIVER
Either party’s decision to not evoke any of the T&C’s clause, whether permanently or temporarily, should in no way be considered a waiver of the Party’s rights pertaining to said clause.
ARTICLE 19. AMENDMENTS TO THE T&C
Youding reserves the right, at its sole discretion, to modify the T&Cs at any given time. Should such a case arise, it will inform the Customer beforehand by sending a letter to the e-mail address the Customer provided when subscribing to Youding’s service or on their updated personal information page. Youding will consider the Customer’s continued use of Youding’s Products and Services after the date in which the T&C has been modified as the Customer providing tacit approval of the udpated T&C without reservation.
ARTICLE 20. SUBLETTING – ASSIGNMENT – DELEGATION – PLEDGE
The Contract being concluded executed intuit personae, will be fully embraced by the Customer, in which he agrees to neither sublet, lend, nor make available all or part of the Products and Services to anyone, in any capacity and in any form whatsoever without the prior written consent of Youding. The Client acknowledges that Youding has kept them informed of all possible assignment or pledge concerning the use of its Products and Services, the Contract and/or the receivables by an Assignee Establishment with the possibility for the latter to pledge or assign this same Contract and/or Products and/or receivables to a third party. The Client consents from now on and without reservation to such transactions, and undertakes to sign, at the first request of Youding or the Transferee Establishment, any necessary documents for the legal and accounting regularization of the transaction(s) concerned. Notifications concerning the operations for the aforementioned will be maintained by registered letter with acknowledgment of receipt issued either by the Transferee Establishment or by Youding. Only the documents and amendments expressly designated in the notification letter or in the regularization document provided for in the paragraph above are binding on the Transferee Institution and on Youding. In the event of an assignment of the Contract, the Assignee Establishment replaces Youding as the operator of the Products and Services from the date of assignment and, vice versa, in the event of assignment of the Contract by the Assignee Establishment to Youding. Depending on the circumstance in question, the Transferee Establishment or Youding therefore acquires all rights and potential actions against and towards the Client resulting from the Contract.
In the event the Contract is assigned to either one of Youding or an Assignee Establishment under the aforementioned conditions, the assignor will be, from the effective date of said assignment, released from any contractual obligation towards the Client, given the Customer’s consent to this discharge. The Client expressly understands and acknowledges that, in the event of an assignment of the Contract to an Assignee Establishment, the latter will become the operator of Youding’s Products and Services and becomes responsible for covering Youding’s cost which includes the principal subscription cost, VAT, interest and incidentals from the date of the reassignment. As such, they are not entitled to making any compensation, deduction, or counterclaim against Youding due to rights of claim or exception. In addition, since the Transferee Establishment do not get to participate in the choice of the supplier(s), nor in that of the Products and Services, nor in the definition of their configuration, the Customer waives any recourse against the Transferee Establishment resulting from the construction, delivery, operation, or installation of the Products. The Transferee Establishment is bound by obligation to leave the Customer in possession of the Products and Services for the remaining duration of the Contract as soon as the latter fulfills its obligations under the Contract. In all cases, Youding remains, on the one hand, the Customer’s contact for all commercial and technical questions and, on the other hand, the administrative manager of the Contract in charge of collecting the documents required for the management of the Contract (such as the insurance certificate, the SEPA direct debit mandate, etc.). The Transferee Establishment is therefore responsible for invoicing the Products and Services.
ARTICLE 21. TRANSLATIONS
In the event of the translation of the T&C into other languages, the French version shall prevail.
ARTICLE 22. APPLICABLE LAW
The T&C is subject to French law. IN THE CASE OF A DISPUTE, THE PARTIES WILL SEEK AN AMICABLE SOLUTION BEFORE CHOSING TO TAKE ANY LEGAL ACTION. IN THE EVENT THAT THESE ATTEMPTS END IN FAILURE, ANY PARTICULAR DISPUTE ARISING FROM THE FORMATION OF THE INTERPRETATION OR EXECUTION OF THE T&C WILL BE BROUGHT BEFORE THE COMPETENT FRENCH COURTS.
ARTICLE 23. CONDITIONS FOR SUSPENSION
In the event that the Contract is signed by the Customer subject to the lifting of a precedented condition, the Customer must justify to Youding that it has taken all the necessary and possible steps to achieve the lifting of the said precedented condition. It is the Customer’s responsibility to provide Youding by registered mail, with acknowledgment of receipt, all evidence to justify the completion of the necessary and possible steps to achieve the lifting of a precedented condition. This letter, with acknowledgment of receipt, must be sent within fifteen (15) days starting from the day the Customer claims it impossible to lift a precedented condition present in the Contract. Failure to comply with this deadline or failure to take the necessary and possible steps to achieve the lifting of a precedented condition would result in the Customer agreeing to pay a compensation equivalent to ten (10) percent of the value stated within the Contract (excluding tax).