Agreement

USER LICENCE FOR CERTAIN SOFTWARE PROGRAMMES TO BE USED WITH BIGBEN PRODUCTS
Update: October 6th, 2015

We would like to thank you for purchasing a product from BIGBEN INTERACTIVE (hereinafter referred to as the “Bigben Product”).

Please ensure that you carefully read this contract and its appendices (hereinafter referred to as the “Licence”) concluded between you (the “User”) and Bigben Interactive SA, a limited company having its registered office at 396 rue de la voyette crt2 – Fretin – CS90414 – Lesquin Cedex France (“Bigben Interactive”) prior to use of your Bigben product.

Use of the Bigben product, and also downloading updating and more generally any other use of Bigben Software, constitutes acceptance of the Licence by the User. If the User refuses to accept the terms and conditions of the Licence, it may not download and/or use in any manner whatsoever the Bigben Software and consequently may not use the Bigben Product.

The provisions set forth under the present licence are stipulated without prejudice for the fundamental provisions of legislation applicable to the User, notably in the domain of intellectual property and consumer law, and likely to lead to the entitlement for the User of specific rights, in particular within the European Union.

  1. The Licence

Bigben Interactive hereby agrees to confer to the User a non-exclusive and non-transferrable right of use for software on board the Bigben Product and related documents (and notably printed or online documentation pertaining thereunto) (hereinafter collectively referred to as “ Bigben Software “), allowing the latter to download and use the Bigben Software, and consequently, to use the Bigben Product.

The Licence is conferred for the legal term of protection of copyright in the whole world, for strictly private use and pursuant to the terms and conditions set forth herein. Under no circumstances whatsoever may Bigben Software be sold to the User.

  1. Ownership of Bigben Software

The Licence does not confer any right or title of ownership over the Bigben Software, which remains the sole and exclusive property of Bigben Interactive. It does not therefore lead to any transfer of intellectual property rights pertaining to Bigben Software to the User in any manner whatsoever.

The User hereby recognises that all rights pertaining to Bigben Software and its components (notably titles, IT codes, concepts, images, photographs, animations, videos, music and text which may potentially be incorporated into Bigben Software), as well as potential trademark, patent, design, model rights sui generis on the basis of databases, copyright, expertise, commercial confidentiality and all pertaining requests are the sole and exclusive property of Bigben Interactive (or its transferors) and are protected by French regulations and/or other laws, treaties and international agreements pertaining to intellectual and industrial property.

  1. Use of Bigben Software

The User is hereby authorised to use Bigben Software pursuant to instructions provided therewith. The Licence is conferred in the framework of a strictly personal and non-commercial use.

The following are strictly prohibited, subject to fundamental legal provisions applicable (and in particular article L.122-6-1 of the French intellectual property code) and/or the authorisation of Bigben Interactive (of its transferors):

  1. Making copies of Bigben Software (with the exception of a backup copy where this is required for protection of use of the Bigben Product and/or Bigben Software);
  2. Commercial Exploitation of Bigben Software or any of its components, in any format whatsoever (sale, transfer, lease, licence, credit lease, etc.);
  3. Any use which runs contrary to proper customs and/or legislation in force;
  4. The modification of Bigben Software or any of its components or the creation of any derivative;
  5. The modification or misuse or deletion of technical protection measures for Bigben Software and/or any components in whole or in part and the digital copyright management systems pertaining thereunto;
  6. Correction by the User or any third party selected by the User of any potential bugs, errors and anomalies in Bigben Software;
  7. The provision or transfer of Bigben Software and/or any of its components, by any means , in particular by the intermediary of any electronic communication method, using without this list being exhaustive, a telephone, internet, set top box, connected TV;
  8. The decompilation, retro-conception and/or disassembly of Bigben Software, and this even for the purpose of interoperability.

The User cannot transfer, sell, re-sell, sub-licence, lease and/or provide the Bigben Software programmes purchased, by any means whatsoever (including by way of download onto an electronic communications network), nor any of its components (including, where applicable, the activation code associated with Bigben Software).

  1. Use of Bigben Software and the Bigben Product

The User understands, recognises and accepts that access to certain functions of the Bigben Software and, consequently, the Bigben Product, including registration, require internet connectivity for which it is responsible. The User has sole and exclusive liability for payment of all third party fees pertaining to the internet connection, including subscription to an ISP or the connection fees from a mobile device.

The operation of Bigben Software and, consequently, the Bigben Product, may be interrupted, limited or restricted in line with capacities, bandwidth or technical restrictions concerning internet connectivity and the ISP. The User understands, acknowledges and accepts that internet connectivity for Bigben Software and the Bigben Product is provided by third parties over whom Bigben Interactive has no control and is governed by the respective terms and conditions of said third parties. The supply, quality, availability and security of internet connectivity, software and services are under the sole and exclusive liability of said third parties. In the same manner, the operation of Bigben Software and, consequently, the Bigben Product may be interrupted, limited or restricted in the event of maintenance of the Bigben Software, which the User hereby accepts.

The User hereby recognises finally to have read and accepted the additional warnings which may exist in line with the Bigben Product concerned, of which details can be found under Appendix 2.

  1. Updates

Bigben Interactive is not legally bound to provide Users with updates, renewals and/or new versions (hereinafter referred to as “Updates“) of Bigben Software. However, in such instance as Bigben Interactive should make an Update available to the User, the latter should hold a valid licence for the previous version so as to be able to use the Update, which will be provided in line with the terms and conditions of the present Licence. The User hereby recognises and accepts moreover thatBigben Interactive reserves the right, whether or not progressively, to cease or limit the maintenance of former versions. The User hereby undertakes therefore to download and use any Update made available in order to fully benefit from the guarantees offered by Bigben Interactive.

  1. Effective date – Termination of the Licence

The Licence will become effective from the time of first use of the Bigben Software, corresponding to the date of first download and/or first use.

It is terminated automatically, ipso jure, by Bigben Interactive without notification in the event of any serious default in any obligations or any default in any fundamental obligations in line with the terms and conditions of the Licence by the User. It is terminated automatically, ipso jure, by the User, by destruction and/or uninstallation by the User of Bigben Software and/or any components thereof in whole or in part. It is hereby reiterated that termination of the Licence may make use of the Bigben Product by the User impossible or not pursuant to the User wishes.

  1. Guarantees

7.1 Commercial Guarantee

Bigben Interactive has provided to Bigben Software all of its expertise in terms of software for connected products so as to guarantee the User complete satisfaction.

If, however, within ninety days (90) following the date of purchase of the Bigben Product, the Bigben Software should appear, under normal conditions of use, defective or non-compliant with the operational and technical characteristics described under the instructions provided, meaning that use of the Bigben Product becomes impossible, Bigben Interactive hereby undertakes to provide free of charge, replacement of the Bigben Software if available (or failing this reimbursement in full of the purchase value), in line with the terms and conditions set forth hereunder.

So as a copy of the defective Bigben Software can be replaced (or, where applicable, so as the Bigben Product can be reimbursed), the User should:

1) Contact technical support for Bigben Interactive. After having briefly described the defective nature of the Bigben Software, Bigben Interactive shall confirm if it is indeed a defect or not.

2) If this certification is issued by Bigben Interactive, Bigben Interactive will allow the User to download, without any additional fees a new copy of the Bigben Software (or where applicable, return the purchase price of the Bigben Product as soon as practically possible, subject to perfect respect by the User of the conditions required for application of the After-Sales Service Charter of BIGBEN INTERACTIVE.

Bigben Interactive hereby reserves the right to delete the activation code for Bigben Software in such instance as this is misused by the User in line with the aforementioned terms and conditions.

7.2 Legal Guarantees

Independent of the commercial guarantee conferred hereinabove, the User is reminded that the vendor of Bigben Software is legally bound by legal guarantees applicable and notably concerning Users residing in France, for defects in compliance of the item with the contract and exhibitory vices in line with the terms and conditions for which provision is made under article L.211-4 et seq of the Consumer Code, and articles 1641 through 1649 of the Civil Code, respectively. Details of these guarantees are outlined under Appendix 1.

It is hereby reiterated that where this concerns the legal guarantee of compliance, the User:

(i) has a period of two years following issue of the item in which to act;

(ii) may opt from the repair or replacement of the item, subject to cost for which provision is made under article L. 211-9 of the Consumer Code;

(iii) is exempt from providing proof of the existence of any defect in compliance of the item for six months following issue of the item. This deadline is increased to twenty four months from 18 March 2016, aside for second-hand items.

(iv) may decide to implement the guarantee against hidden defects for the sold item as defined under article 1641 of the Civil Code and under this instance, may choose from termination of the sale or a reduction in the sales price pursuant to article 1644 of the Civil Code.

It is also reiterated that the legal guarantee for compliance is applicable independent of the commercial guarantee which may be conferred.

  1. Limitation of guarantee

Bigben Software is provided in its current condition other than that for which provision is made under article 7 of the Licence. Particularly, Bigben Interactive does not guarantee continuous or error-free operation of the Bigben Software and/or correction of errors.

The User hereby expressly recognises that any Use of Bigben Software which is not compliant with instructions for use, minimum recommended specifications, and in its latest updated version, is undertaken at its own risk and peril. Consequently, if the defect or non-compliance observed by the User is a result of this incorrect use, or from any case of force majeure, none of those guarantees for which provision is made under Article 7 of the Licence will be due by Bigben Interactive.

Within the limits imposed by applicable law, Bigben Interactive consequently rules out any guarantee pertaining to the trade value of Bigben Software, at the satisfaction of the User, its ability to respond to any particular use or to the lack of any counterfeit.

Finally, the User recognises to have read and understood the limitations of additional guarantee which may exist according to the Bigben Product concerned, of which details appear under Appendix 2.

  1. Liability

Under no circumstances whatsoever may Bigben Interactive be held liable for any direct, indirect, accidental, special, accessory or other prejudice rising due to (1) use or impossibility to use the Bigben Software, (2) inadequate use or improper use of the Bigben Software or any old and unsupported version , (3) of the loss or alteration of any data or information, and/or (4) of the loss of any revenue or business due to possession or use of the Bigben Software, and this even if Bigben Interactive has been duly notified of the possibility of such a prejudice.

Bigben Interactive notably refuses all liability in the event of any use of Bigben Software undertaken contrary to precautions of use indicated in the instructions for use. The User shall accept all costs for repair and/or correction of Bigben Software, and all risks related to a loss of profit, loss or alteration of data, errors, loss of commercial information or other resulting from the possession of Bigben software or its use.

Finally, the User understands, recognises and accepts that Bigben Software is not designed or intended for any use other than with the Bigben Product. The User understands and expressly accepts that any other hardware, software, content or set of data may be damaged by installation or use of the Bigben Software on any other product than the Bigben Product. Bigben Interactive, its affiliates and third party licence transferors cannot be held liable for such damage.

In all instances, the liability of Bigben Interactive may not exceed the purchase value of Bigben Software.

The User hereby acknowledges to have read and accepts the additional limitations of liability which may exist in line with the Bigben product concerned, of which details appear under Appendix 2.

  1. Personal Data – Respect of privacy

Bigben Interactive respects applicable legislation in terms of protection of personal data and privacy.

The User may be asked to send Bigben Interactive personal data (such as name, address, IP address, email address , location data or any other personal data as defined under Directive 95/46/EC) when registering or using Bigben Software and the Bigben Product.

Bigben Interactive only uses personal data of the User for the sole and exclusive purposes of performing the functions of the Bigben Software, as well as for supervision of commercial relations with the User, for security purposes pursuant to legislation and regulations applicable and to enable improvement and customisation of products and services offered to the User and information sent thereunto.

By notifying personal details to Bigben Interactive, Users authorise the latter to process and handle these for the aforementioned purposes. In such instance as this personal data is identified as being necessary for use of Bigben Software and the Bigben Product and the User refuses to notify these to Bigben Interactive or refuses that this data be handled pursuant to these presents, the Bigben Software and/or Bigben Product may not be used.

Pursuant to the data protection and freedom of information act of 6 January 1978, Users have a right to access, interrogate, rectify and object to personal data being held as notified to Bigben Interactive. This right may be exercised by writing to Bigben Interactive at the address appearing at the top of these presents and by indicating one’s surname, forename, address or email address.

Bigben Interactive has declared the processing of personal data in the framework of use of the Bigben product under the number indicated under Appendix 2.

  1. Applicable Law – Jurisdictional Clause

The Licence is solely and exclusively subject to French law, with the exclusion of any rules of conflicting legal systems. In the event of any dispute concerning the formation, interpretation, performance, default in performance or termination of the Licence, the French courts holding jurisdictional competence shall hold sole and exclusive jurisdiction, even in the event of any emergency or multiple defendants. However, for any User residing in the European Union, where French law offers a degree of protection for consumers lower than that in the country of residence of the User, legislation concerning consumer protection in the country of residence of the User shall prevail.

Appendix 1: Legal Guarantees

Article L.211-4 of the Consumer Code: “The vendor is bound to deliver an item which complies with the contract and is free of all defects in compliance at the time of issue. It is also free of defects in compliance resulting from packaging, assembly instructions or installation where this is incumbent thereupon within the contract or undertaken under its own liability”.

Article L.211-5 of the Consumer Code: “In order to comply with the contract, the item should: 1. To be fit for the commonly expected use of a similar item and, where applicable: – to correspond to the description given by the vendor and have the capacities which the latter presented to the buyer in the form of a sample or model; – to present the qualities which a buyer may legitimately expect from public declarations made by the vendor, by the producer or by the representative thereof, notably in terms of publicity or labelling; 2. Or present the characteristics defined mutually by the parties or be fit for any special use sought by the buyer, and notified by the vendor and which the latter has accepted”.

Article L.211-8 of the Consumer Code: “The Buyer is entitled to request compliance of the item with the contract. It may not however contest compliance by claiming any default about which it is aware or could not ignore when contracted. This shall additionally be the case when the default lies in the materials which it provided”.

Article L.211-9 of the Consumer Code: “In the event of any default in compliance, the buyer can decide between repair and replacement of the item. However, the vendor may not act in line with the choice of the buyer if this leads to any cost which is disproportionate in light of the other method, given the value of the item or scale of the defect. It is then bound to undertake, notwithstanding any impossibility, the method not selected by the buyer”.

Article L.211-10 of the Consumer Code: “If repair and replacement of the item are impossible, the buyer may return the item and be reimbursed for the price or retain the item and be reimbursed for a portion of the price. The same option is available: 1. If the solution requested, proposed or agreed pursuant to article L. 211-9 cannot be implemented without one month following the claim being made by the buyer; 2. Or if this solution cannot be implemented without a considerable disadvantage for the latter given the nature of the item and the desired use. Termination of the sale cannot however be confirmed if the default in compliance is not considerable”.

Article L.211-11 of the Consumer Code: “Application of the provisions set forth under articles L.211-9 and L. 211-10 is undertaken without any cost for the buyer. These same provisions shall not impeded the allocation of compensation”.

Article L.211-12 of the Consumer Code: “Action resulting from a default in compliance is time stamped after two years following issue of the item”.

Article 1641 of the Civil Code: “The vendor is bound by the guarantee for hidden defects of the sold idem which makes it unfit for its intended use, or which considerably reduces this use which would have meant the buyer would not have made the purchase, or would have done so at a reduced price, if aware”.

Article 1643 : “It is bound by hidden defects, even when unaware thereof, unless, in this case, it has stipulated that it will not be under the obligation to provide any guarantee”.

Article 1644 of the Civil Code: “In the case of articles 1641 and 1643, the buyer has the choice of returning the item or being reimbursed, or retaining the item and being reimbursed for a portion of the price”.

Article 1648 (1): “Action resulting from redhibitory defects should be taken by the buyer within a period of two years following discovery thereof. “.

Appendix 2

Additional information

The present Appendix 2 outlines, for each type of Bigben product, the additional notices, limitations and guarantees and liabilities and information concerning personal data.

GPS pet sitter

Additional notices To determine its position [GPS pet sitter] uses data from GPS satellites. Environmental conditions (weather, atmospheric, magnetic notably) are likely to have an effect on the availability of satellite systems. Functions of the [GPS pet sitter] may be affected and consequently temporarily unavailable, and without notice.

The User hereby undertakes, recognises and accepts that satellite connectivity related to Bigben Software and to [GPS pet sitter] is provided by third parties over whom BIGBEN INTERACTIVE has no control and is governed by the respective terms and conditions of said third parties. The supply, quality, availability and security of satellite connectivity, software and services are under the sole and exclusive liability of said third parties, so as BIGBEN INTERACTIVE may not be held liable for any interruption to the service related to the satellite systems.

The User hereby undertakes, recognises and accepts that access to certain functions of the Bigben Software and, consequently, of [GPS pet sitter], requires a SIM cardand phone number notably allowing for [GPS pet sitter] to issue SMS alerts to the number(s) selected by the User. The User accepts and recognises that it is solely and exclusively liable for this SIM card and for payment of all third party fees related to its purchase and use for [GPS pet sitter], and that BIGBEN INTERACTIVE has no control over the supply, quality, availability and security of the SIM card and associated services, provided by third parties and under their liability, meaning that BIGBEN INTERACTIVE will not be held liable for any interruption to the service due to GSM/GPRS systems.
Limitations additionnelles de garanties et de responsabilités [GPS pet sitter] may, as with all electronic material, not work as expected and not transmit a GPS position. In such an instance, the liability of Bigben Interactive may not exceed the reimbursement of the purchase price of [GPS pet sitter], as indicated under Article 9.

The User hereby recognises that [GPS pet sitter] is only an assistance tool for supervision of animals for which it is responsible and may under no circumstances whatsoever replace direct supervision by the User of animals.

Consequently, Bigben Interactive may not be held liable for any direct, indirect, accidental, special, ancillary or other prejudice arising as suffered by the User and/or by supervised animals, on the occasion of use or impossible use of [GPS pet sitter].

The User hereby declares moreover that it will use [GPS pet sitter] for strictly private purposes and with the exclusion of any professional use and pursuant to applicable laws. More generally, location of third parties by the User via [GPS pet sitter] is undertaken therefore under the sole and exclusive liability of the User, in absolute respect of laws applicable.

Bigben Interactive hereby reserves the right to terminate the Licence, ipso jure and without notice, in such instance as the User should use [GPS pet sitter] in breach of laws and regulations which are applicable to the User.
Données personnelles Data processing is declared:

– with the CNIL [National Data Protection Commission] under number [ 1461518 ]

GPS personal watch

Additional notices To determine its position [GPS personal watch] uses coordinates from GPS satellites. The environmental conditions (meteorological, atmospheric, magnetic notably) are likely to have an effect on the availability of satellite systems. The functions of [GPS personal watch] may be impacted and consequently may be temporarily unavailable, and without notice.

The User understands, recognises and accepts that satellite connectivity pertaining to Bigben Software and to [GPS personal watch] is provided to third parties over which BIGBEN INTERACTIVE has no control and is governed by the respective terms and conditions of said third parties. The supply, quality, availability and security of satellite connectivity, software and services are under the sole and exclusive liability of third parties, meaning that BIGBEN INTERACTIVE will not be liable for any interruption of the service related to satellite systems.

The User understands, recognises and accepts finally that access to certain functions of Bigben Software and, consequently, the [GPS personal watch], requires a SIM card and phone number notably allowing the [GPS personal watch] to send SMS alerts to the number(s) selected by the User. The User accepts and recognises that it is solely and exclusively liable for this SIM card and for payment of all third party fees related to its purchase and use for [GPS personal watch], and that BIGBEN INTERACTIVE has no control over the supply, quality, availability and security of the SIM card and the associated services, provided by third parties and under their own liability, meaning that BIGBEN INTERACTIVE will not be held liable for any interruption to the service related to GSM/GPRS systems.
Limitations additionnelles de garanties et de responsabilités [GPS personal watch] may, as with all electronic equipment, not work as expected and not transmit a GPS position. In such an instance, the liability of Bigben Interactive may not exceed reimbursement of the purchase price of [GPS personal watch] as indicated under Article 9.

The User hereby recognises that [GPS personal watch] is only a tool for the assistance of supervising children and/or dependent elderly people and may under no circumstances whatsoever substitute the direct supervision by the User of said children and/or dependent elderly people.

Consequently, Bigben Interactive may not be held liable for any direct, indirect, accidental, special, ancillary or other prejudice arising as suffered by the User and/or by supervised third parties, on the occasion of use or impossible use of [GPS personal watch].

The User hereby declares moreover that it uses [GPS personal watch] for strictly private purposes and with the exclusion of any professional use and pursuant to applicable legislation. The User hereby recognises that it uses the mechanism for its own behalf, and that it is consequently considered as liable for processing personal data and it has satisfied the corresponding obligations of declarations in terms of location of third parties. More generally, location of third parties by the User via [GPS personal watch] is therefore undertaken under the sole and exclusive liability of the User, with the latter being responsible for ensuring when necessary that it has the consent of the supervised persons in total respect of applicable laws.

Bigben Interactive hereby reserves the right to terminate the Licence, ipso jure and without notice, in such instance as the User should use [GPS personal watch] in breach of laws and regulations applicable to the User.
Données personnelles Data processing is declared:

– with the CNIL [National Data Protection Commission] under number [ 1461518 ]

GPS car tracker

Additional notices To determine its position, [GPS car tracker] uses coordinates provided by GPS satellites. The environmental conditions (meteorological, atmospheric, magnetic notably) are likely to have an effect on the availability of satellite systems. The functions of [GPS car tracker] may be impacted and consequently may be temporarily unavailable, and without notice.

The User understands, recognises and accepts that satellite connectivity pertaining to Bigben Software and to [GPS car tracker] is provided to third parties over which Bigben Interactive has no control and is governed by the respective terms and conditions of said third parties. The supply, quality, availability and security of satellite connectivity, software and services are under the sole and exclusive liability of third parties, meaning that Bigben Interactive will not be liable for any interruption of the service related to satellite systems.

The User understands, recognises and accepts finally that access to certain functions of Bigben Software and, consequently, the [GPS car tracker], requires a SIM card and phone number notably allowing the [GPS car tracker] to send SMS alerts to the number(s) selected by the User. The User accepts and recognises that it is solely and exclusively liable for this SIM card and for payment of all third party fees related to its purchase and use for [GPS car tracker], et and that BIGBEN INTERACTIVE has no control over the supply, quality, availability and security of the SIM card and the associated services, provided by third parties and under their own liability, meaning that BIGBEN INTERACTIVE will not be held liable for any interruption to the service related to GSM/GPRS systems.
Limitations additionnelles de garanties et de responsabilités [GPS car tracker] may, as with all electronic equipment, not work as expected and not transmit a GPS position. In such an instance, the liability of Bigben Interactive may not exceed reimbursement of the purchase price of [GPS car tracker], as indicated under Article 9.

The User hereby recognises that [GPS car tracker] is only a tool for the assistance of supervising vehicles and may under no circumstances whatsoever substitute the direct supervision by the User of said vehicles.

Consequently, Bigben Interactive may not be held liable for any direct, indirect, accidental, special, ancillary or other prejudice arising as suffered by the User and/or by supervised vehicles, on the occasion of use or impossible use of [GPS car tracker].

The User hereby declares moreover that it uses [GPS car tracker] for strictly private purposes and with the exclusion of any professional use and pursuant to applicable legislation. The User hereby recognises that it uses the mechanism for its own behalf, and that it is consequently considered as liable for processing personal data and it has satisfied the corresponding obligations of declarations in terms of location. More generally, location of third parties by the User via [GPS car tracker] is therefore undertaken under the sole and exclusive liability of the User, with the latter being responsible for ensuring when necessary that it has the consent of the supervised persons in total respect of applicable laws.

Bigben Interactive hereby reserves the right to terminate the Licence, ipso jure and without notice, in such instance as the User should use [GPS car tracker] in breach of laws and regulations applicable to the User.
Données personnelles Data processing is declared:

– with the CNIL [National Data Protection Commission] under number [ 1461518 ]