Last Updated Date: [2018-05-23 Date This TOS is posted online]
Octobat, with a share capital of 400 Euros, registered with the Registry of Trade and Companies under RCS number 820 567 501, whose registered office is located 230 Rue du General Leclerc, 95120 Ermont, FRANCE. (“Octobat,” “we,” or “us”) provides solutions through our website accessible at https://www.octobat.com and other locations to enable sellers on online marketplaces to calculate taxes and fees associated with ecommerce transactions, create invoices and tax records and perform related serves (the “Services”). These detailed Terms of Service (“TOS”) and any other terms you are provided with in connection with your access to and use of the Services, govern your use of the Services. It is therefore important that you read and understand these TOS. This TOS supersedes all previous terms of service available on the Services.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SERVICES OR BY UPLOADING OR POSTING ANY CONTENT ON THE SERVICES, YOU, YOUR HEIRS, AND ASSIGNS (COLLECTIVELY, “YOU”) ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THE TOS, WHETHER OR NOT YOU HAVE REGISTERED ON OR THROUGH THE SERVICES. IF YOU DO NOT AGREE TO THE TOS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICES OR OCTOBAT CONTENT.
Octobat reserves the right, in its sole discretion, to upgrade its Services at any time and without prior notice. In the event that any modifications to our Services constitute material changes to scope or functionality, we will notify you by sending you an e-mail to the last e-mail address you provided to us and/or providing notification on our website. You will be deemed to have accepted our material changes to any Services, unless you terminate your purchase of ongoing Services within ten (10) days of receipt of our notice. In such case, you shall be entitled to request, as full and sole compensation, the pro rata refund of any prepaid subscription fees paid to us and corresponding to the period after the date of the termination. Payment of such compensation constitutes your sole and full remedy for termination by you of the ongoing Services. Please note that you are responsible for updating your email address with us. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the modifications described in the notice. We will also update the “Last Updated Date” at the top of the TOS. If you have any questions or concerns about the modified TOS, please contact us at: email@example.com.
By using the Services, you affirm that you are at least 18 years of age. You further acknowledge and accept that by using the Services, you are an individual entrepreneur within the meaning of Article L. 121-1 of the French Commercial Code, subject to all obligations imposed on individual entrepreneurs by law. In addition, if you are selling your products on online marketplaces outside of your country of residence, you acknowledge that you may be subject to the laws of the country in which these online marketplaces are established and you agree to comply with such laws.
In order to access or use certain features of the Services you will be required to register and create an account (“Account”). You agree to provide accurate, current and complete information during the registration process and at other times when you use the Services and to update such information to keep it accurate, current and complete. We reserve the right in our sole discretion to refuse to keep Accounts for, or provide services to, any individual. We reserve the right to suspend or terminate your Account if any information provided during the registration process or at other times proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify us of any unauthorized use of your Account.
To use some features of the Services, you may be required to link your Account with your accounts on one or more third party payment services (“Payment Services”), such as Stripe. With your authorization, we will access your Payment Services in order to, among other things, read and write data to your account with such third parties, automatically calculate applicable taxes, and generate compliant PDF tax records. Once this connection is made, you expressly authorize the exchange of personal and commercial data between the Payment Services and Octobat in order to effectuate the purposes of this Agreement. All such access shall be deemed to be authorized by you. Access to third party services may be terminated by you at any time, although doing so may impair the proper functioning of the Octobat tools and features.
Octobat grants You the right to access and use the Service via the Website with the particular user roles available to You according to Your subscription type. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement.
You are solely responsible for the security of personal or other data that may be provided or hosted by you, including all indirect tax information. You shall comply with all laws governing the collection, retention and use of personal data and transaction data. You agree to provide conspicuous notice to customers on your website disclosing how and why personal information is collected and used.
You will comply with applicable laws, applicable indirect tax Laws and Data Laws including, without limitation, any rules, notices, guidances or directions issued by relevant tax authorities.
You will comply with any applicable laws pertaining to the operation of your business of service and any products or services you are offering. You will not offer any products or services, or engage in any activities that may expose Octobat to risk or legal liability.
The Services are protected by copyright, trademark, and other laws of France, the United States and other countries. Except as expressly provided in these TOS, Octobat and its licensors exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services. You further agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Services, in whole or in part. All trademarks, service marks, logos, trade names and any other proprietary designations of Octobat used herein are trademarks or registered trademarks of Octobat. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
We may offer a number of services for a fee, including subscriptions or other offers, containing different options and features. From time to time, additional products and services may be available to you for additional fees. The details of such offers will be published on our website. We reserve the right to modify, terminate or otherwise amend our offered services at any time in our sole discretion. Your purchased services may be governed by separate terms that will be provided to you during the purchase process or otherwise through the Services.
From time to time, we may offer or provide free trials, free Octobat Content, and other special offers. To use these offers, you must have Internet access. During the free trial, the features of the Services that we make available to you may be limited. We have the discretion to change the features offered and terms of our free trials in our discretion. At the end of the free trial period, you may have the option to purchase a subscription or other service or terminate the free trial.
You agree to pay to us all fees and applicable taxes incurred by you in connection with your use of the Services. We may change the fees and charges in effect, or add new fees and charges from time to time, but we will give you advance notice of these changes. We will not provide advance notice for temporary promotions. We may also not always be able to notify you of changes in any applicable taxes. With the exception of the circumstances stated in Paragraph 2 above, PAYMENTS ARE NON-REFUNDABLE AND THERE ARE NO REFUNDS FOR PARTIALLY-USED PERIODS.
You may be provided with the option to upgrade or downgrade your purchased services, in which case details will be provided through the Services. In the event services are downgraded, the new service level will not be effective until the natural expiration of the current subscription. At any time, and for any reason, we may provide a discount, credit, or other consideration to some or all of our users ("credits"). The amount and form of such credits, and the decision to provide them, are at our sole and absolute discretion. The provision of credits in one instance does not entitle you to credits in the future for similar instances, nor does it obligate us to provide credits in the future, under any circumstance.
With respect to certain of services, We may provide You with an option to automatically renew the service or subscription. If You elect automatic renewal, each renewal term for the services will be equal in duration to the initial term for such services. At any time during a renewal term, You may elect to not renew the service or subscription for the forthcoming renewal term, in which case this Agreement with regard to such non-renewed services shall be terminated upon the expiration of the then-current renewal term.
During a free trial or “test” period, you can terminate your Account at any time and without justification or obligation. The services you purchase, including subscriptions, will continue in effect unless and until you properly cancel in accordance with, if applicable, any specific terms provided to you at the time of purchase or unless the Services are otherwise suspended or discontinued pursuant to this TOS. All Account termination requests should be sent by email to firstname.lastname@example.org. PLEASE NOTE THAT WE DO NOT PROVIDE REFUNDS FOR PAYMENTS ALREADY MADE. To the extent that You have enabled access to any third party services through Octobat, it is Your responsibility to disable or terminate such access in the event of cancellation.
It is important that each user of the Services honor the payment obligations to which the user agreed. Accordingly, we reserve the right to pursue any amounts you fail to pay to us in connection with your use of the Services. You will remain liable to us for all such amounts and all costs we incur in connection with the collection of these amounts, including, without limitation, collection agency fees, reasonable attorneys' fees, and court costs. Notwithstanding the terms of this Section, any amounts not paid by the user on the due date shall, automatically and without prior notice, bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. In addition, in the event of late payment, we may charge the user a fixed collection fee of EUR 40 (as may be amended by relevant national legislation from time to time) as a minimum compensation for our recovery costs, without prejudice to our right to seek full indemnification for all additional costs incurred by us to collect amounts due.
The Services may contain links, text, graphics, images, audio, video, information, code, or other materials created by Octobat or submitted by users of the Services (“Services Content”). Subject to your compliance with the TOS, we grant you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access and use the Services, and to access, use, view and print any Services Content solely for the purposes specified herein and agreed by Octobat. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services or Services Content, except as expressly permitted in the TOS. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by us or our licensors, except for the licenses and rights expressly granted in these TOS.
With respect to data and other content you submit or make available on the Services (“User Content”), you grant us an irrevocable, fully sub-licensable, world-wide, royalty-free, non-exclusive license, for the legal duration of the intellectual property rights related to the User Content, to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such User Content (in whole or in part) for the purposes of carrying out the Services and for advertising purposes.
You understand that you take sole responsibility for all of Your Content and any User Content you upload, transmit, or otherwise include on the Services, whether privately transmitted or made publicly available. Under no circumstances will we be liable in any way for any Content uploaded, posted, shared, emailed, transmitted or otherwise made available via the Services by you or other users. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available through the Services or you have all rights, licenses, permissions, consents and releases that are necessary to grant us the rights in such User Content, as contemplated under these TOS; and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or our use of the User Content (or any portion thereof) on, through or by means of the Services or otherwise will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Without limiting the foregoing, we and our designees shall have the right to remove any User or Content that violates the TOS, may expose us to potential legal liability or risk, or is otherwise objectionable, in our sole discretion. You further acknowledge and agree that you bear the sole risk of reliance on any Content available on or through the Services.
You are solely responsible for your interactions with other users of the Services and with any third party buyers.
For any proposals or ideas that you submit to us, in addition to any other representations or warranties in these TOS, you represent and warrant that you have the right to disclose such ideas or proposals to us and that such disclosure does not violate the rights of any other person or party. By submitting your idea or proposal you acknowledge and recognize that we are continually working on new products, services and technologies, and as such, we may currently or in the future be internally developing proposals, ideas or information or receiving proposals, ideas or information from others that are likely to be similar to the proposals or ideas provided by you. We assume no fiduciary or confidentiality obligation of any kind with respect to any proposals, ideas or suggestions made by you that relate to our products or services. You also understand and agree that our willingness to review any proposals or ideas is not an admission by us of novelty, priority, or originality and does not impair our right to contest existing or future patents or copyrights claiming the ideas. If you choose to provide feedback, comments and suggestions for improvements to the Services or otherwise (in written or oral form) (“Feedback”), you grant us a non-exclusive, royalty-free, fully paid, fully sub-licensable, irrevocable worldwide license, for the duration of protection of such Feedback under applicable international treaties and domestic laws, under any and all of your copyright related to that Feedback, and you agree that any such Feedback or any derivative works thereof may be displayed, reproduced, used, sublicensed, posted or published by us and you are not entitled to any compensation or reimbursement of any kind from us for the Feedback under any circumstances.
You expressly agree not to do any of the following:
We may access, preserve and disclose any of your information carried, maintained, hosted, or sent through the Services if we are required to do so by law, or if we believe in good faith that it is reasonably necessary to (i) respond to claims asserted against us or to comply with legal process (for example, subpoenas or warrants), (ii) enforce or administer our agreements with users, such as the TOS; (iii) for fraud prevention, risk assessment, investigation, customer support, product development and de-bugging purposes, or (iv) protect the rights, property or safety of Octobat, its users, or members of the public. You acknowledge that we have no obligation to monitor your access to or use of the Services, or to review or edit any User Content, but we have the right to do so for the purpose of operating and improving the Services (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes), to ensure your compliance with the TOS, to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body, to respond to content that we determine is otherwise objectionable or as set forth in the TOS. We reserve the right, at any time and without prior notice, to remove or disable access to any Octobat Content or User Content that we, in our sole discretion, consider to be objectionable for any reason, in violation of the TOS or otherwise harmful to the Services. In order to protect the integrity of the Services, we also reserve the right at any time in our sole discretion to block users from certain IP addresses from accessing and using the Services.
We try to keep our Services safe, secure, and functioning properly, but we cannot guarantee the continuous operation of or access to our Services. If you notify us by email at the following address email@example.com within ten (10) days of receipt of a Service that such Service was defective, then we will review the situation and, if we determine that the Service was defective and that we are responsible for such defect, we will, at our choice, either re-perform the Service at no extra charge or reimburse to you the amount you paid for the portion of the Service that was defective. You agree that this shall constitute your sole and full remedy for any defects in the Services. EXCEPT FOR THE FOREGOING WARRANTY, THE SERVICE AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WE MAKE NO WARRANTY THAT THE SERVICE OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR FREE BASIS. EXCEPT AS OTHERWISE PROVIDED HEREINABOVE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR THROUGH THE SERVICES OR CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. WE DO NOT GUARANTEE ANY IMPACT ON YOUR PROFITS OBTAINED THROUGH SALES IN ONLINE MARKETPLACES BASED ON YOUR USE OF THE SERVICES. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES (SUCH AS BUYERS).
***You are solely responsible for determining what, if any, taxes apply to your particular business. Octobat may provide some general information about taxes and other requirements, but we cannot and do not provide legal, tax or business advice. If you have questions or are unsure about the requirements for your business, we strongly encourage you to seek out the advice of relevant professionals who advise based upon your precise circumstances.***
YOU UNDERSTAND AND AGREE THAT WE SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM:
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US FOR USE OF THE SPECIFIC SERVICES THAT GAVE RISE TO THE LIABILITY.
IMPORTANT INFORMATION RELATING TO WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY: BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, OR OTHER TYPES OF DAMAGES, IN SUCH STATES OR JURISDICTIONS, YOU MAY HAVE DIFFERENT OR ADDITIONAL RIGHTS ACCORDING TO THE APPLICABLE LAWS OF COUNTRY FROM WHICH YOU VALIDLY ACQUIRED AND USE THE PRODUCT AND IN WHICH CASE THE LIABILITY OF OCTOBAT AND ITS AFFILIATES SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
You agree to defend, indemnify, and hold Octobat, its subsidiaries and affiliates, and its respective officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Services or Octobat or Content originating from You or Your Users, your breach of any law or the rights of a third party, or your violation of these TOS. If you have a dispute with one or more users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
We may terminate this agreement, your Account or your use of the Services or access to Your Content, at any time and for any reason, by giving you at least ten (10) days written notice of our intention to do so, termination being effective as of said date. In such case, you shall be entitled to obtain, as full compensation, the pro rata refund of any prepaid subscription fee paid to us and corresponding to the period after the date of the termination. Payment of such compensation constitutes your sole and full remedy for termination by Octobat of this agreement, your Account, your use of the Services and access to Octobat Content. In addition, if we believe that a material breach of these TOS has been committed by you, we shall give you a notice of such breach. If you fail to remedy the breach within ten (10) days of receipt of the notice, then we shall have the right to terminate forthwith this agreement, your Account, your use of the Services and access to Octobat Content without judicial proceeding by giving you a written notice of termination.
In the event of any termination, whether by you or us, Sections 5, 6(g), 7, 9-12, 15, 16(c), 16(d) and 16(f) of these TOS will survive and continue in full force and effect.
If your Account is cancelled, we do not have an obligation to return to you any content or data you have posted to the Services.
The Services, or third parties, may provide links to other sites or online services. Because we have no control over such sites and services, you acknowledge and agree that we are not responsible for the availability of such external sites or services, and do not endorse and are not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
The TOS and the relationship between you and Octobat will be governed by the laws of France, without giving effect to any choice of law principles that would require the application of the laws of a different country or state. You can contact us at firstname.lastname@example.org regarding any concerns you have regarding the Services. Most concerns are quickly resolved in this manner to our customer's satisfaction. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations, which shall be a precondition to either party initiating a lawsuit. If the parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution is pursued, to the extent permitted by applicable law, all controversies, disputes, demands, counts, claims or causes of action between you and Octobat arising out of, under, or related to this TOS, shall be submitted to the exclusive jurisdiction of the courts of Paris, France, even in case of summary proceedings, multiple defendants or appeals.
By using the Services, you consent to receiving electronic communications from us. These communications may include invoices, notices about your account, confirmation e-mails and other transactional information, and information concerning or related to the Services, and may include newsletters and promotional communications from us if you have chosen to receive such communications during sign-up and have not opted out. You agree that any notice, agreements, disclosure or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. You agree to receive calls, including autodialed and/or pre-recorded message calls, from us at any of the telephone numbers (including mobile telephone numbers) that we have collected for you, including telephone numbers you have provided us, or that we have obtained from third parties or collected by our own efforts. If the telephone number that we have collected is a mobile telephone number, you consent to receive SMS or other text messages at that number. Standard telephone minute and text charges may apply if we contact you at a mobile number or device. You agree we may contact you in the manner described above at the telephone numbers we have in our records for these purposes:
We may share your telephone numbers with our service providers (such as billing or collections companies) who we have contracted with to assist us in pursuing our rights or performing our obligations under the TOS, our policies, or any other agreement we may have with you. These service providers may also contact you using autodialed or prerecorded messages calls and/or SMS or other text messages, only as authorized by us to carry out the purposes we have identified above, and not for their own purposes.
We will not share your telephone number with non-affiliated third parties for their purposes without your explicit consent, but may share your telephone numbers with our affiliates, who will only contact you using autodialed or prerecorded message calls and/or SMS or other text messages, if you have requested their services.
From time to time, we test various aspects of the Services, including our website, user interfaces, service levels, promotions, features, and pricing, and we reserve the right to include you in or exclude you from these tests without notice. You acknowledge and agree that such testing may from time to time temporarily impair or change parts of the Services.
You may not frame the Services. You may link to the Services, provided that you acknowledge and agree that you will not link the Services to any website containing any inappropriate, profane, defamatory, infringing, obscene, indecent, or unlawful topic, name, material, or information or that violates any intellectual property, proprietary, privacy, or publicity rights. Any violation of this provision may, in our or any of our affiliates’ discretion, result in termination of your use of and access to the Services effective immediately.
You may not assign your rights or obligations under or transfer these TOS, by operation of law or otherwise, without our prior written consent. We may assign or transfer these TOS, in our sole discretion, without restriction. Subject to the foregoing, these TOS will bind and inure to the benefit of the parties, their successors and permitted assigns.
We do not represent that the materials in the Services are appropriate or available for use in any particular location. Those who choose to access the Services do so on their own initiative and are responsible for compliance with all applicable local laws, including, if you are in the United States, any applicable export control or foreign assets control regulations.
We shall not be liable for any delay or failure to perform resulting from causes outside our reasonable control, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond our control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials. In the event of force majeure, the obligations of this agreement are suspended. If the event of force majeure continues for more than one month, this agreement is automatically terminated without formal notice.
You acknowledge that this TOS, the guidelines and policies incorporated herein, either in their entirety or by explicit reference, constitute the entire agreement between you and us and govern your use of the Services. If any provision of the TOS is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible by law, and the other provisions of the TOS will remain in force. Our failure to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision unless acknowledged and agreed by us in writing. The section titles in this TOS are used solely for the convenience of you and us and have no legal or contractual significance. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of the TOS. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the TOS.
If you have any questions about these TOS, please contact us at email@example.com. Alternatively you may contact us by mail at [230 rue du General Leclerc, 95120 Ermont, France]