TERMS OF USE OF THE KICKANDBOOST PLATFORM

Version du 30/06/2017

PREAMBLE

These Terms of Use (hereinafter Terms of Use) apply to any use of this Service and all the contractual transactions entered into by the company KickAndBoost and its Clients on the website that is found at: https//www.KickAndBoost.com

The company KickAndBoost - a simplified joint-stock company under French law, whose headquarters are IMMEUBLE NEW DEAL - 35 RUE DE MARSEILLE - 69007 LYON – France, registered on the Lyon register of companies (RCS) under the number 829 359 694, represented by its current legal representatives (hereinafter called “KickAndBoost”) and between any legal entity or natural person acting as professional, of private or public law who wish to benefit from one or several services offered by the company KickAndBoost.

To use the services offered by KickAndBoost on the Platform, the Client whether it be Seller or Buyer has to read and comply with these Terms of Use without limitation or qualification. This acceptance will materialize when their account is created on the Site.

DEFINITIONS

The following definitions will be adopted for the words listed below:

ORDER FORM: refers to the detailed written document defining the Project as well as the implementation modalities of the service between the Client called “Buyer” and the Client called “Seller” and including the general Terms of Sale of the Seller. It is established when the Buyer subscribes to finance the Project and is definitive only if the Fundraising succeeds.

CLIENT: refers to the user of the Site, acting as professional, legal entity of private or public law or any natural person acting in their professional capacity, excluding people acting as consumers. The legal entity Client will be represented by a natural person, duly authorized.

The Client called “Seller”, hereinafter “Seller” includes a Client that offers a study, software, a training module, to a greater extent any intangible service (the Project). The Client called “Buyer”, hereinafter “Buyer” includes a Client that prefunds a study, software, a training module. The Buyers are also professionals.

The Client called Seller and the Client called Buyer will be called hereinafter, “the Client(s)”.

FUNDRAISING: maximum period of 60 days during which the Buyers can fund Projects offered by the Sellers.

PERCENTAGE: refers to any amount received by KickAndBoost in exchange of the matchmaking Service.

COMPENSATION: service provided by the Seller to the Buyer following the contribution of the Buyer to the funding of a Project during the Fundraising. This compensation can take various forms depending on the Project in question.

FUNDING: financial contribution payed by the Buyer(s) to the Seller to enable the completion of the Project defined by the Seller.

PLATFORM: refers to the website ran by KickAndBoost on which the Sellers‘ Projects are presented.

PRICE: refers to the early financial participation (Funding) of the Buyer transferred to the Seller of the service.

PROJECT: refers to the studies offered (market, consumer, economic, technical, competitive), software, training modules or any other intellectual or intangible service performed by the Seller. The subjects of these studies, training modules and software are put online on the Platform developed by KickAndBoost.

SERVICE: refers to all the matchmaking services offered by KickAndBoost.

SITE: refers to the website published by KickAndBoost and found at: https//www.KickAndBoost.com

TRANSACTION: refers to the transactions entered into between the Seller and the Buyer through the Service offered by KickAndBoost and which KickAndBoost is not part of.

MANGOPAY: platform that receives the funds on behalf of third parties: marketplaces, crowdfunding platforms, collaborative economy

1 - Object

The aim of these Terms of Use is to describe the Services offered by KickAndBoost, the rules governing the use of the Platform as well as the legal and financial conditions of the Services offered by KickAndBoost to the Buyers and the Sellers.

2 - Legal document

These Terms of Use and, when applicable, the special conditions and/or appendices put online by KickAndBoost are applicable.

By registering on the Site, the Buyer and the Seller acknowledge they are aware of these Terms of Use as well as the Privacy Policy and accept them unreservedly.

KickAndBoost reserves the right to modify these Terms of Use. The new terms of use will be notified to the Buyers and Sellers who will have to accept them unreservedly to use the Service.

3 - Accessibility of the Site and the Platform

KickAndBoost undertakes to use its best efforts to allow Buyers and Sellers a reliable and fast access to the Site, the Platform and the Service. The Site, the Platform and the Service offered are available 24/7, subject to accidental interruption or interruption necessary to the proper functioning of the Service such as a maintenance operation. This possible interruption will not result in compensation.

4 - Location and security of KickAndBoost’s infrastructures

The place hosting the Service and information pertaining to the Clients is situated in the European Union.

KickAndBoost does its best and takes, under an obligation of means, all the security measures necessary to prevent a non-authorized access to the infrastructures on which the Client information are stored.

5 - Description of the Service offered by KickAndBoost

KickAndBoost is a platform created by the company KickAndBoost.

The company KickAndBoost offers a matchmaking Service between professional Clients: Buyers and Sellers.

Registering on the site is free.

KickAndBoost offers a meeting place in which Buyers and Sellers complete and finalize their Transactions.

The Service offered by KickAndBoost is only open to private legal entities or any natural person acting as professional, excluding consumers.

As an intermediary, KickAndBoost does not take part in the Transaction entered in by the Buyers and Sellers and materialized by an order form.

The Service is made of several tools and interactive interfaces offered by KickAndBoost on the Platform and that allow:

Buyers:

  • to register on the Platform by creating an account;
  • to buy Projects;

    Sellers:
  • to register on the Platform by creating an account;
  • to sell Projects and upload them online;
  • to choose the minimum amount for the Funding of the Project.

The Service also allows Sellers and Buyers to communicate via the platform.

The Sellers resort to an early funding system of their Projects to cover development costs and limit the risks of unsold items.

The upstream Funding of the Project by the Buyers allows them to have the right to use the Project at a preferential rate.

Before implementing the Project, the Seller gives the details of the Project and chooses the compensation associated with their Project. The description of the Project explains the different Compensation(s) offered by the Seller.

The Seller decides on a case-by-case basis what the Compensation is based on the nature and the characteristics of the Project.

As an example, the Seller can offer the following forms of Compensation:

  • exclusive use by a Buyer requiring the payment of the full amount of the Funding asked for by the Seller;
  • usage by a single user;
  • right of use for several users;
  • right of use for a whole company;
  • flat rate.

This is a non exhaustive list.

In this regard, the Buyer acknowledges having verified that the Compensation offered by the Seller is in line with their needs and having received all the information and advice necessary to finalize the Transaction in full knowledge of the facts.

The Transaction finalized via the Service offered by KickAndBoost and materialized by an Order Form, is concluded directly between the Buyer and the Seller. KickAndBoost does not take part in this Transaction.

The Order Form is signed when the Buyer subscribes to the Funding of the Project. The Order Form becomes definitive only if the Funding of the Project succeeds.

If the fundraising and implementation period of the Project is successful, the Order Form becomes definitive and the Transaction will result in the payment of a Percentage from the Seller to KickAndBoost. The payment of a Percentage only occurs when the Funding of the Project is successful.

6 - Creating an account

To access KickAndBoost’s Service, each Client, whether they be Seller or Buyer has to create an account.

The Seller has to give all the information pertaining to their company. So as to prove the reality of their economic activity, they can be asked to provide the following documents:

  • proof of registration of the company in accordance with the legal requirements of the country in which its Headquarters are (for example: extract K-bis in France),
  • copies of the articles of incorporation of the company
  • copy of the legal representative’s ID
  • an identification table of stockholder, natural or legal persons, who hold directly or indirectly at least 10% of the capital stock

As well as any other document asked for by MANGOPAY, the payment platform. KickAndBoost reserves the right to decline the creation of an account if the Seller does not provide all the requested documents.

Should any of the information change, the Client will have to update it promptly. The Buyer that uses the Platform stays anonymous towards the public and the people who login on the Platform. The Seller only knows the identity of the Buyers to be able to issue an invoice. The Client will be able to unsubscribe from the Platform at any time by deleting their account.

The accounts might be subject to verification by KickAndBoost. KickAndBoost reserves the right to deny the creation on an account to any legal or natural person whose activity seems non-existent or doubtful.

To access the Service, the Client will have to use, assuming full responsibility, the username and password they will have created when creating the account. The Client will be responsible for any activity or action, authorized or not, on their account.

The Client will have to report any loss, theft or fraudulent use of their account and KickAndBoost will then suspend the use of the relevant account.

7 - Submission, visibility and price of the Projects

The Seller can offer different types of Projects:

  • studies
  • software
  • training modules
  • any other intellectual or intangible service

This is a non-exhaustive list.

The Projects are presented on the Platform under a name, chosen by the Seller, and accompanied by a technical and precise description that contains, for example, the following information:

  • The description of the Project;
  • The minimum amount required for the realization of the Project ;
  • The type and the sum of the Compensation offered (for example: flat rate, hourly rate, user license);
  • Overall duration of the Fundraising that cannot exceed 60 days;
  • The number of days left to participate in the Fundraising ;
  • The total amount of money collected updated in real time;
  • Photos or videos to present the Project (optional);
  • The General Terms of Sale of the Seller.

KickAndBoost shall refuse to validate a Project, especially under the following circumstances:

  • Incomplete Projects;
  • Projects whose words or aim are of a racist, violent, insulting, defamatory, revisionist nature, praise war crimes, are pedophile, call for killings or incite to suicide, discrimination or hatred
  • Projects whose content recreates without authorization a piece of work protected by intellectual property;
  • Projects already published on other fundraising sites;
  • More generally, any reason KickAndBoost would believe justifiable.

8 - Validation of the Transaction - Order Form

The Order Form is generated by KickAndBoost (in order to maintain the confidentiality of the Buyers during the Fundraising period) on the basis of the information given by the Seller. The Seller is the only one responsible for the information transmitted to KickAndBoost for the establishment of the Order Form.

The Order Form is detailed according to the characteristics of the Project and contains:

  • Information pertaining to the identification of the Seller
  • The description of the Project
  • The rules governing the use of the Project chosen by the Buyer (Compensation)
  • The Price according to the type of Compensation chosen by the Buyer
  • The duration of the Fundraising
  • The minimum amount for the Funding
  • The date and the delivery terms of the Project
  • The General Terms of Sale of the Seller

The validation of the Transaction as well as the acceptance of the general terms of sale of the Seller will occur when the Buyer clicks on “VALIDATE THE ORDER”. It will create an Order Form established between the Seller and the Buyer.

However, the Order Form is definitive only if the Fundraising succeeds, that is to say only if the minimum amount of Funding required for the implementation of the Project is reached.

Otherwise, if the necessary funds are not raised, the Order Form will be null and void and the funds payed by the Buyer(s) will be sent back to them by MANGOPAY.

9 - Price of the Transaction and mode of payment

The Buyers fund a Project early.

The total amount of the necessary Funding is fixed by the Seller in the description of their Project.

The amount of Funding for a Project cannot be less than 5,000€ excluding tax. KickAndBoost does not set a maximum amount of Funding.

Even if the Funding goal is reached before the end date of the subscription, the fundraising will continue until the end date set by the Seller. This duration cannot exceed 60 days.

It is then possible for the Seller to raise more funds than initially planned in the Project.

The payment of the Price of the Transaction and of the Compensation are done via the payment platform MANGOPAY.

The payment can be done via:

  • Credit card: the sum is immediately debited from the Buyers’ bank account. Only the following cards are accepted:
  • Debit or Credit cards (Carte Bleue)
  • Visa
  • MasterCard

Bank transfer: in order to proceed to the payment, the bank account details will be sent to the Buyer. The participation of the Buyer in the Project and thus, to the Fundraising will only be taken into account once the payment is done on the Platform. The transfer order should absolutely contain the number of the Order Form previously sent to the Buyer.

During the Fundraising, the funds paid by a Buyer for a Project will be sequestrated and kept by MANGOPAY.

If the minimum Funding amount is reached at the end of the Fundraising, the Order Form becomes definitive and the Seller publishes an invoice for the Buyer.

The Seller is solely responsible for the compliance with the invoicing rules and VAT regime that can be applied to the Transaction.

The Client explicitly agrees that the invoice be sent to them electronically.

At the end of the Fundraising, the funds collected will be released and transferred to the Seller by MANGOPAY after deduction of the Percentage owed to KickAndBoost.

The Percentage owed by the Seller to KickAndBoost will directly be transferred by MANGOPAY. KickAndBoost will then send an invoice to the Seller bearing the word “paid”.

10 - Cost of the Service

KickAndBoost offers its Services against payment of a Percentage of 15% excluding tax, that is to say 18% all tax included. The Percentage is in Euros and owed by the Seller.

The Percentage is debited from the sum received by the Seller via the payment platform MANGOPAY, what the Seller acknowledges and explicitly agrees.

Thus, and if the minimum amount of Funding for the Project is reached, the Seller receives by electronic means an invoice issued by KickAndBoost and relative to the percentage bearing the word “PAID”.

MANGOPAY’s Terms of Use can be found on the site: https://www.mangopay.com/terms/end-user-terms-and-conditions/Mangopay_Terms-FR.pdf.. Both the Seller and the Buyer acknowledge having read them and accept them unreservedly.

The Percentage can be revised by KickAndBoost, without it affecting the Agreements already entered into. KickAndBoost shall notify the Seller via email. Continuing to use the Service implies the acceptance of the new Percentage.

11 - Delivery of the Project after completion

Upon the planned delivery date, the Seller transmits the Project, according to the submission arrangements detailed in the description of the Project and on the Order Form.

When delivering the Project, the Seller gives the Buyer a delivery note.

It is up to the Buyer, under their full responsibility, to perform a backup of the Project.

12 - Insufficient Funding of a Project

If the Seller does not obtain the minimum Funding required, their Project will not be achieved. The Order Form agreed on by the Seller and the Buyer will be null and void.

KickAndBoost will see to inform the Buyer. The Buyer will then be reimbursed by MANGOPAY of the amount they have already transferred and that was sequestrated as explained in the article 9 above.

There will be no additional cost for the Seller in case of insufficient funding. The Project will simply be abandoned for lack of funds.

In case of abandonment of the Project for insufficient funding, the Buyer will not be able to claim damages.

13 - Obligations of KickAndBoost

KickAndBoost commits as an intermediary, towards their Clients and as part of an obligation of means, to carry out the services borne by them in accordance with standard practice, providing all care and diligence necessary in accordance with the practices of the profession.

14 - Client obligations

The Seller and the Buyer accept these Terms of Use. They make a commitment to respect the laws and rules that are applicable and to use the Service in good faith.

The Client guarantees the truthfulness of all the identification elements transmitted to KickAndBoost and uploaded on the Platform. KickAndBoost reserves, in any case, the possibility to ask the Seller additional documents and the Seller agrees to fulfill KickAndBoost’s entire request. Otherwise, KickAndBoost may suspend the supplying of the Service.

The Seller guarantees that the Projects contain authentic and sincere information and that the content is in accordance with the description of the Project presented on the Platform.

The Seller guarantees that, to their knowledge, the Project respects the rights of intellectual and industrial property, personal rights and more generally all the rights belonging to a third party. Similarly, they declare being the author and/or having all the necessary rights on the whole Project they are implementing and selling on KickAndBoost’s Site.

More generally, the Seller guarantees that their Projects are in accordance with applicable regulations.

The Seller issues, under their sole responsibility, the corresponding invoices in case of a successful Fundraising in accordance with the billing rules and VAT regimes that apply to the Transaction.

The Seller has to make sure under their sole responsibility that the Project and the expectations are in line.

15 - Relations between the Seller and KickAndBoost

The relations between the Seller and KickAndBoost are ruled by these Terms of Use.

When creating an account, the Seller accept the terms and conditions of the matchmaking Service offered by KickAndBoost.

The Seller has, for each Project, to write a precise description in the Order Form and send their General Terms of Sale to the Buyer. Otherwise, KickAndBoost reserves le right to turn down a Project insufficiently detailed.

If the Fundraising succeeds the Seller will issue the invoices, under their sole responsibility, and send them to the Buyer.

16 - Relations between the Seller and the Buyer

The relations between the Seller and the Buyer are ruled by these Terms of Use and the terms and conditions of the Seller.

When signing an Order Form, the Buyer accepts the General Terms of Sale of the Seller.

17 - Guarantees and responsibilities of KickAndBoost

KickAndBoost does not intervene in the implementation of the Projects but only provides a matchmaking Service for its Clients.

Thus, KickAndBoost does not provide any guarantee on the content of the Project implemented by the Seller. This obligation only and exclusively lies with the Seller.

KickAndBoost cannot be held responsible in case of incompatibility between the Project and the Buyer(s)’ expectations or if a Project is not delivered. It is up to the latter to make sure the Project is relevant in comparison to their needs and the use they want to make of it. Only the Seller’s responsibility can be engaged.

KickAndBoost cannot be held responsible if a Seller violates the rights of third parties and/or the Project implemented is counterfeit.

KickAndBoost commits to making any illicit content uploaded on the Platform and brought to its attention inaccessible and that, after verifying it and as soon as possible.

Finally, KickAndBoost declines all responsibility when it comes to the consequences of the Transaction concluded through the site between the Buyers and the Sellers, to which KickAndBoost remains a third party. Any dispute regarding the Transaction and the Order Form can only be solved by the Buyers and Sellers, without KickAndBoost taking part in it.

In the event of difficulties pertaining to the delivery of the Project or its contents, KickAndBoost’s only obligation and responsibility will be to do its best to put the Buyer in relation with the Seller. The complaint will be addressed between the Buyer and the Seller without KickAndBoost intervening in any way.

Moreover, KickAndBoost’s responsibility is expressly excluded from situations caused by the Client, especially in the following cases:

  • wrong use of the Site and the Platform by the Client, error, negligence, omission or default on their part,
  • loss and/or theft and/or fraudulent use of the Client’s username and password,
  • non compliance with advice provided by KickAndBoost ,
  • temporary or definitive interruption request of the Service offered by KickAndBoost coming from competent administrative or judicial authorities,
  • total or partial destruction of the information transmitted or stored because of errors arising from the Client.

If KickAndBoost’s responsibility is engaged, it is limited to direct and material damages, excluding any other type of damage and especially indirect and non-material damages (especially, without this list being exhaustive: business disturbance, loss of revenue, reputational damage, loss of data, commercial disturbance, lawsuit of a third party against a Client, etc.)

The total of the damages that could be perceived relating to KickAndBoost’s responsibility is limited in its quantum to the amounts transferred (Percentages) by the Seller to KickAndBoost in accordance with the services in question.

18 - Confidentiality and protection of personal data

In accordance with article 34 of the modified French Data Protection law, KickAndBoost promises to take all useful measures to preserve the security of information passing on the Platform and especially to prevent them from being deformed, damaged or communicated to a third party.

KickAndBoost promises to keep all the information gathered as part of the Service confidential and to refrain from communicating to anyone other than its personnel or a third party at the request of an administrative or judicial competent authority, in compliance with applicable laws, the information, of all nature (commercial, technical, financial, etc.), that are communicated to it or which KickAndBoost knows of as part of the Service performed.

KickAndBoost thus promises as part of an obligation of means to respect the following requirements and to enforce them among employees or subcontractors:

    not to use the information processed for purposes other than those specified in these Terms of Use;

    not to divulgate this information to other people, whether they be public, private, natural or legal persons;

    to take all the necessary security measures, especially material, to insure the preservation and integrity of the information handled through the duration of the Service.

With regard to personal data, KickAndBoost is responsible for the processing as defined by the Regulation (EU) 2016/976 of the European Parliament and of the Council of April, 27th 2016.

KickAndBoost promises to respect all the laws and regulations pertaining to information technologies, data files and civil liberties and especially, to proceed to the prerequisite and appropriate formalities to the local data protection competent authorities.

The rights of access, rectification and opposition of those concerned must be exercised to those responsible of the processing. KickAndBoost only transmits the requests submitted to the company by those involved.

19 - Force majeure

The responsibility of KickAndBoost and/or the Seller cannot be engaged if the performing of the services or any obligation falling to them in conformance with these Terms of Use is prevented or limited because of a case of force majeure such as: fire, explosion, failure of the transmission networks, epidemic, earthquake, flood, power outage, war, embargo, act of state, strike, boycott or any other unpredictable circumstance that is out of its reasonable control.

Under these circumstances, the concerned party must notify the other party as soon as possible, and with that reservation, is exempt from the execution of its obligations and the other party is, in the same way, exempt from the execution of its obligations, provided that the affected party does its best efforts to prevent or get round the reasons for the non-implementation and that both parties proceed with promptness as soon as such causes have stopped or have been removed.

The parties have to keep each other informed regularly via email of the evolution of the case of force majeure.

If a case of force majeure should last more than 30 days, starting from its notification, the Service could be terminated as of right at the request of one or the other party, without entitlement to compensation from any of the parties.

20 - Intellectual property

The texts, commentaries, illustrations, works and images copied or represented on the Site are the property of KickAndBoost or KickAndBoost owns their usage rights and are protected by intellectual property rights. Any reproduction, representation, modification or total or partial adaptation of the Site and/or all or part of the elements on or incorporated to the Site is strictly forbidden and could be qualified as forgery.

21 - Duration, termination and suspension of the Services

These Terms of Use apply during the whole duration of the Service offered by KickAndBoost.

In the event of non-compliance by the Client to one of their obligations and in case of failure to respect these Terms of Use, KickAndBoost reserves the right to suspend the access to the Service to give the Client time to explain themselves. If the Client does not rectify the failure in a period of seven (7) days starting from the notification, the Service will be terminated of right, without prejudice to any potential compensation that could be demanded from them.

In case of malevolent and/or dishonest use of the Site, KickAndBoost reserves the right to suspend the Service without notice.

KickAndBoost reserves the possibility to suspend the Service to perform a maintenance operation or a technical intervention to improve its functioning or for any other intervention deemed necessary.

22 - Technical support

Technical tools and literature are made available by KickAndBoost to its Clients.

If the Client does not find an answer to their question or in case of technical difficulty, the Client can send their question via email to: support@KickAndBoost.com

23 - File a complaint

Clients can file a complaint pertaining to the usage of the Site to this email address: support@KickAndBoost.com

24 - Miscellaneous rules

The titles of the articles of the Terms of Use are indicative and have as sole objective to facilitate the reading and do not have themselves a contractual value or a particular meaning.

The Terms of Use are written in French. In case they would be translated into one or several foreign languages, only the French text shall be deemed authentic in case of litigation.

25 - Applicable law – Jurisdictional competence

These Terms of Use are subject to French law. All disputes relating to their interpretation and/or execution will be within the jurisdiction of the competent court within the jurisdiction of the Lyon Court of Appeal.

26 - Legal Notice

The company KickAndBoost is a simplified joint-stock company under French law, whose headquarters are
IMMEUBLE NEW DEAL - 35 RUE DE MARSEILLE - 69007 LYON - France,
registered on the Lyon register of companies
(RCS) under the number 829 359 694, NAF code 4791A, Intra-community VAT: FR 91 829 359 694
Director of Publication: Khaled BAAZIZ
Website hosting: OVH