You have purchased a product from KIWIP TECHNOLOGIES SAS (the “KIWIPWATCH 5 Product”) and for that we thank you.
Please read carefully this agreement and its appendixes (the “Licence”) between you (the “User”) and KIWIP TECHNOLOGIES SAS, a simplified company with shares whose registered office is 1 IMPASSE DES PAILLONS – 77700 – BAILLY-ROMAINVILLIERS – MARNE-LA-VALLEE France (“KIWIP TECHNOLOGIES” SAS “) before using your KIWIPWATCH 5 product.
The use of the KIWIP TECHNOLOGIES SAS product, as well as the fact of downloading, updating and more generally using the KIWIP TECHNOLOGIES SAS Software, constitutes acceptance by the User of the License.
If the User refuses the terms of the License, he or she will not be able to download and/or use in any way whatsoever the KIWIP TECHNOLOGIES SAS Software and consequently will not be able to use the KIWIPWATCH Product and its services.
The provisions of the present license are stipulated without prejudice to the mandatory provisions of the legislation applicable to the User, in particular in the field of intellectual property and consumer law, likely to give the User the benefit of specific rights, in particular within the European Union.
KIWIP TECHNOLOGIES SAS grants to the User a non-exclusive and non-transferable License to use the software integrated in the KIWIPWATCH 5 Product and the related documents (including printed or online documentation related thereto) (hereinafter referred to collectively as the “KIWIP TECHNOLOGIES SAS Software”), allowing him or her to download and use the KIWIP TECHNOLOGIES SAS Software, and thus to use the KIWIPWATCH 5 Product.
The License is granted for the term of legal copyright protection, worldwide, for strictly private use and in accordance with the terms hereof. Under no circumstances is the KIWIP TECHNOLOGIES SAS software sold to the User.
The License does not confer any right or title to the KIWIP TECHNOLOGIES SAS Software, which remains the sole property of KIWIP TECHNOLOGIES SAS. It therefore does not transfer any intellectual property rights relating to the KIWIP TECHNOLOGIES SAS Software to the User in any respect whatsoever.
The User acknowledges that all rights relating to the KIWIP TECHNOLOGIES SAS Software and its constituent elements (including titles, computer codes, concepts, images, photographs, animations, videos, music and text that may be incorporated into the KIWIP TECHNOLOGIES SAS Software), as well as any trademark, patent or design rights, model, sui generis rights on databases, copyrights, know-how, trade secrets or any related requests are the exclusive property of KIWIP TECHNOLOGIES SAS (or its licensors) and are protected by French regulations and/or other laws, treaties and international agreements relating to intellectual and industrial property.
The User is authorised to use the KIWIP TECHNOLOGIES SAS Software in accordance with the instructions provided with it. The Licence is granted for strictly personal and non-commercial use.
In particular, the following, subject to the mandatory provisions of applicable law (and in particular Article L.122-6-1 of the French Intellectual Property Code) and/or the authorisation of KIWIP TECHNOLOGIES SAS (or its licensors), are prohibited:
Making copies of the KIWIP TECHNOLOGIES SAS Software (with the exception of a backup copy when this is necessary to preserve the use of the KIWIP WATCH Product and/or the KIWIP TECHNOLOGIES SAS Software);
Making commercial use of the KIWIP TECHNOLOGIES SAS Software or any of its constituent elements, in any form whatsoever (sale, transfer, rental, licence, leasing, etc.);
Making any use contrary to morality and/or the laws in force;
Making any use that does not comply with the instructions provided or the minimum recommended specifications;
Modifying the KIWIP TECHNOLOGIES SAS Software or any of its constituent parts or creating any derivative work;
Modifying, bypassing or removing technical protection measures of the KIWIP TECHNOLOGIES SAS Software and/or any of its constituent parts and the related digital rights management systems;
Correcting by the User or by a third party chosen by the User of any bugs, errors or anomalies in KIWIP TECHNOLOGIES SAS Software;
Providing or transmitting the KIWIP TECHNOLOGIES SAS Software and/or any of its constituent parts, by any means, in particular through an electronic communications network by means of, without this list being exhaustive, a telephone, internet, box, connected television;
Decompiling, reverse engineering and/or disassembling KIWIP TECHNOLOGIES SAS Software, even for interoperability purposes.
The User may not transfer, sell, resell, sub-license, rent and/or make available in any way whatsoever the KIWIP TECHNOLOGIES SAS Software that he or she has acquired, by any means whatsoever (including by downloading on an electronic communications network), nor any of its constituent parts (including, if applicable, the activation code associated with the KIWIP TECHNOLOGIES SAS Software).
The User understands, acknowledges and accepts that access to certain features of the KIWIP TECHNOLOGIES SAS Software and, therefore, of the KIWIPWATCH 5 Product, including its registration, requires an Internet connection for which he or she is solely responsible. The User is solely responsible for the payment of all third-party costs related to his or her connection to the Internet, including the subscription to an internet access provider or connection charges from a mobile device.
The operation of the KIWIP TECHNOLOGIES SAS Software and therefore of the KIWIPWATCH 5 Product may be interrupted, limited or restricted depending on the capacities, bandwidth or technical restrictions of the Internet connection and the access provider. The User understands, acknowledges and accepts that the Internet connectivity related to the KIWIP TECHNOLOGIES SAS Software and the KIWIPWATCH 5 Product is provided by third parties over which KIWIP TECHNOLOGIES SAS has no control and is governed by the respective conditions of said third parties. The supply, quality, Availability and security of Internet connectivity, software and services are the sole responsibility of such third parties. In the same way, the operation of the KIWIP TECHNOLOGIES SAS Software and, therefore, of the KIWIPWATCH 5 Product, may be interrupted, limited or restricted in the event of maintenance of the KIWIP TECHNOLOGIES SAS Software, which the User accepts.
Lastly, the User acknowledges having read and accepted the additional warnings that may exist depending on the KIWIPWATCH 5 Product concerned, the details of which appear in Appendix 2.
KIWIP TECHNOLOGIES SAS is not obliged to provide the User with updates, upgrades, and/or new versions (hereinafter, the “Updates”) of the KIWIP TECHNOLOGIES SAS Software.
However, in the event that KIWIP TECHNOLOGIES SAS makes an Update available to the User, the User must be in possession of a valid license for the previous version in order to use the Update, which will be provided under the terms of this License.
The User further acknowledges that KIWIP TECHNOLOGIES SAS reserves the right, progressively or not, to cease or limit the maintenance of the old versions. The User shall therefore download and use any Update made available to him or her in order to benefit fully from the warranties offered by KIWIP TECHNOLOGIES SAS.
The License comes into force from the first use of the KIWIP TECHNOLOGIES SAS Software, corresponding to the date of the first download and/or first use.
It is automatically terminated by KIWIP TECHNOLOGIES SAS without notice in the event of a serious breach of any of its obligations or a breach of any of its essential obligations under the terms and conditions of the License by the User. It is automatically terminated, by right, by the User, by the destruction and/or uninstallation by the User of the KIWIP TECHNOLOGIES SAS Software and/or all or part of all its constituent elements. It is reiterated that the termination of the License may make the use of the KIWIPWATCH 5 Product by the User impossible or not in keeping with the User’s wishes.
KIWIP TECHNOLOGIES SAS has brought to KIWIP TECHNOLOGIES SAS Software all its know-how in software material for connected products to guarantee the User’s complete satisfaction.
If however, within 2 years from the date of purchase of the KIWIPWATCH 5 Product, the KIWIP TECHNOLOGIES SAS Software, under normal conditions of use, proves to be defective or does not conform to the functional and technical characteristics described in the instructions provided, in such a way that the use of the KIWIP TECHNOLOGIES SAS Product becomes impossible, KIWIP TECHNOLOGIES SAS shall replace the KIWIP TECHNOLOGIES SAS Software free of charge if it is available (or failing this, reimburse it in full at the value of purchase), under the conditions defined below.
In order for the defective copy of the KIWIP TECHNOLOGIES SAS Software to be replaced (or, if the KIWIPWATCH 5 Product is to be reimbursed), the User must:
Contact the technical support of KIWIP TECHNOLOGIES SAS. After having briefly described the defect to which the KIWIP TECHNOLOGIES SAS Software is subject, KIWIP TECHNOLOGIES SAS will confirm whether or not it may indeed be a defect.
If this confirmation is given by KIWIP TECHNOLOGIES SAS, KIWIP TECHNOLOGIES SAS will allow the User to download a new copy of the KIWIP TECHNOLOGIES SAS Software at no additional cost or if applicable, will refund the purchase price of the KIWIP TECHNOLOGIES SAS Product as soon as possible, subject to the User’s full compliance with the conditions required in application of the KIWIP TECHNOLOGIES SAS After Sales Service Charter.
KIWIP TECHNOLOGIES SAS reserves the right to delete the activation code associated with the KIWIP TECHNOLOGIES SAS Software if it is returned by the User under the above conditions.
Independently of the contractual warranty granted above, the User is reminded that the seller of KIWIP TECHNOLOGIES SAS Software remains bound by the applicable legal guarantees, and in particular, in the case of Users/consumers residing in France, any lack of conformity of the goods to the contract and any redhibitory defects under the conditions provided for in Articles L.211-4 et seq. of the French Consumer Code, and Articles 1641 to 1649 of the French Civil Code, respectively. The details of these warranties are set out in Appendix 1.
It should be borne in mind that when it is a question of a legal guarantee of conformity, the User/consumer
It should also be borne in mind that under the legal guarantee of conformity, the product is in conformity with the contract:
It should further be borne in mind that the legal guarantee of conformity applies independently of any contractual warranty that may have been given.
The KIWIP TECHNOLOGIES SAS Software is provided as is and without warranty other than that set forth in Article 7 of the License. In particular, KIWIP TECHNOLOGIES SAS does not guarantee the continuous or error-free operation of the KIWIP TECHNOLOGIES SAS Software and/or the correction of errors.
The warranty may not be applied in the case of breakage of the screen, case, bracelet and/or accessories of the KIWIP WATCH 5 PRODUCT, or in the case of oxidation of the product resulting from immersion in water outside the watertightness index announced by KIWIP TECHNOLOGIES SAS.
The User expressly acknowledges that any Use of the KIWIP TECHNOLOGIES SAS Software that does not comply with the instructions for use, the minimum recommended specifications, or to the latest version made available, is at the User’s own risk. Consequently, if the defect or non-conformity observed by the User results from this improper use, as well as from a case of force majeure, none of the warranties provided for in Article 7 of the License will be due by KIWIP TECHNOLOGIES SAS.
Within the limits imposed by the applicable law, KIWIP TECHNOLOGIES SAS therefore excludes any warranty relating to the market value of the KIWIP TECHNOLOGIES SAS Software, to the satisfaction of the User, its suitability for a particular use or the absence of counterfeiting.
Lastly, the User acknowledges having read and accepted the additional warranty limitations that may exist depending on the KIWIP TECHNOLOGIES SAS Product concerned.
Under no circumstances shall KIWIP TECHNOLOGIES SAS be held liable for any direct, indirect, accidental, special, incidental, consequential or other damages arising out of (1) the use or the impossibility of using the KIWIP TECHNOLOGIES SAS Software, (2) the improper use or malfunction of the KIWIP TECHNOLOGIES SAS Software or an old unsupported version, (3) the loss or alteration of any data or information, and/or (4) the loss of any income or business resulting from the possession or use of the KIWIP TECHNOLOGIES SAS Software, even if KIWIP TECHNOLOGIES SAS has been advised of the possibility of such loss.
In particular, KIWIP TECHNOLOGIES SAS declines all liability in the event of use of the KIWIP TECHNOLOGIES SAS Software contrary to the precautions for use set out in the instructions for use. The User shall bear all costs of repair and/or correction of the Software KIWIP TECHNOLOGIES SAS, and all risks related to loss of profits, loss or alteration of data, errors, loss of commercial or other information resulting from the possession or use of KIWIP TECHNOLOGIES SAS Software.
Finally, the User understands, acknowledges and accepts that the KIWIP TECHNOLOGIES SAS Software is not designed or intended for use other than for the KIWIP WATCH Product. The User expressly understands and accepts that any other hardware, software, content or set of data could be damaged by the installation or use of the KIWIP TECHNOLOGIES SAS Software on any other product than the KIWIP TECHNOLOGIES SAS Product. KIWIP TECHNOLOGIES SAS, its affiliates and its third-party licensors shall not be liable for such damages.
In any event, the liability of KIWIP TECHNOLOGIES SAS shall not exceed the purchase value of the KIWIP TECHNOLOGIES SAS software.
Lastly, the User acknowledges having read and accepted the additional warranty limitations that may exist depending on the KIWIP TECHNOLOGIES SAS Product concerned. Details can be found in Appendix 2.
KIWIP TECHNOLOGIES SAS complies with the applicable legislation on the protection of personal data and privacy.
The User may be invited to communicate to KIWIP TECHNOLOGIES SAS personal data (such as his or her name, physical address, IP address, email address, geolocation data or any other personal data within the meaning of Directive 95/46/EC) at the time of registration as well as during the use of the KIWIP TECHNOLOGIES SAS Software and the KIWIP TECHNOLOGIES SAS Product.
KIWIP TECHNOLOGIES SAS will only use the personal data of the User for the sole purpose of carrying out the functionalities expected of the KIWIP TECHNOLOGIES SAS Software, as well as for the monitoring of the commercial relationship with the User, for security purposes in accordance with the laws and applicable regulations and to allow for the improvement and customisation of products and services that
are proposed to the User and the information addressed to him or her. KIWIP TECHNOLOGIES SAS may also be required to share this data with its external service providers in a form that does not allow the User to be personally identified, for all of the aforementioned purposes.
By communicating his or her personal data to KIWIP TECHNOLOGIES SAS, the User authorises KIWIP TECHNOLOGIES SAS to process such data for the aforementioned purposes. In the event that this personal data is identified as being necessary for the use of the KIWIP TECHNOLOGIES SAS Software and the KIWIP TECHNOLOGIES SAS Product and that the User refuses to communicate it to KIWIP TECHNOLOGIES SAS or refuses that these data be processed in accordance herewith, the KIWIP TECHNOLOGIES SAS Software and/or the KIWIP TECHNOLOGIES SAS Product cannot be used.
In accordance with the French Data Protection Act of 6 January 1978, the User has the right to access, question, rectify and object to the personal data concerning him or her communicated to KIWIP TECHNOLOGIES SAS. This right may be exercised by the User by writing to KIWIP TECHNOLOGIES SAS at the address given at the top of these terms and indicating his or her surname, first name, street address or email address.
KIWIP TECHNOLOGIES SAS has declared the processing of personal data within the framework of the use of the KIWIP TECHNOLOGIES SAS Product. CNIL FILE number: 2004688
The License is subject exclusively to French law, excluding any conflict of law rules. In the event of any dispute arising out of the formation, interpretation, performance, non-performance or termination of the License, the French courts having jurisdiction under French law shall have exclusive jurisdiction, even in the event of an emergency proceedings or multiple defendants. However, for any User/consumer residing in the European Union, where French law offers a lower degree of consumer protection than the law of the User’s country of residence, the consumer protection laws of the law of the User’s country of residence shall prevail.
Article L.211-4 of the French Consumer Code: “The seller is obliged to deliver goods that comply with the contract and is liable for any lack of conformity existing at the time of delivery. It is also liable for any lack of conformity resulting from the packaging, the assembly instructions or the installation when it has been made liable for it by the contract or it has been carried out under its responsibility.”
Article L.211-5 of the French Consumer Code: “To be in conformity with the contract, the product must: 1 Be fit for the use usually expected of a similar product and, where applicable: – if it corresponds to the description given by the seller and has the qualities that the seller has presented to the buyer in the form of a sample or model; – if it has the qualities that a buyer may legitimately expect in view of the public statements made by the seller, by the producer or by its representative, in particular in advertising or labelling; 2 Or present the characteristics defined by mutual agreement between the parties or be suitable for any special use sought by the buyer, brought to the knowledge of the seller and accepted by the latter”.
Article L.211-8 of the French Consumer Code: “The buyer is entitled to demand that the product complies with the contract. He or she may not, however, contest conformity by invoking a defect which he or she knew of or could not have been unaware of when he or she entered into the contract. The same shall apply if the defect originates in the materials which he himself or she herself supplied”.
Article L.211-9 of the French Consumer Code: “In the event of a lack of conformity, the buyer chooses between repairing or replacing the product. However, the seller may not proceed according to the buyer’s choice if this choice entails a cost that is manifestly disproportionate to the other method, taking into account the value of the product or the importance of the defect. It is then required to proceed, unless it is impossible, according to the method not chosen by the buyer”.
Article L.211-10 of the French Consumer Code: “If the repair and replacement of the product are impossible, the buyer may return the product and have the price refunded or keep the product and have part of the price refunded. The same faculty is open to him or her: 1 If the solution requested, proposed or agreed pursuant to Article L. 211-9 cannot be implemented within one month of the buyer’s complaint; 2 Or if this solution cannot be implemented without major inconvenience to the buyer given the nature of the product and the use he or she is seeking. However, the sale may be cancelled if the lack of conformity is minor”.
Article L.211-11 of the French Consumer Code: “The application of the provisions of Articles L.211-9 and L.211-10 shall take place at no cost to the buyer. These same provisions do not prevent the award of damages”.
Article L.211-12 of the French Consumer Code: “The action resulting from the lack of conformity is time-barred after two years from the delivery of the product.”
Article 1641 of the Civil Code: The seller is bound to a warranty against hidden defects in the thing sold that render it unfit for its intended use, or that so impair its use that the buyer would not have bought it, or would only have given a lesser price for it if he had known of the defects.
Article 1643: “The seller is liable for hidden vices even though it did not know of them, unless it stipulated that it would not be bound to any warranty.
Articles 1644 of the Civil Code: Under Articles 1641 and 1643, the buyer has the choice either to return the thing and to have the price returned to him or her or to keep the thing and have a part of the price returned to him or her.”
Article 1648 (1): An action resulting from redhibitory defects must be brought by the buyer within two years from the discovery of the vice.”
This Appendix 2 details, for each type of KIWIP TECHNOLOGIES SAS Product, additional warnings, additional limitations of warranties and liabilities and additional information on personal data.
To determine its position, the KIWIPWATCH 5 uses coordinates from GPS satellites. Environmental conditions (weather, atmospheric, magnetic in particular) are likely to have an impact on the availability of satellite systems. The features of KIWIPWATCH 5 may be impacted and therefore be temporarily unavailable without notice.
The User understands, acknowledges and accepts that the satellite connectivity related to the KIWIP TECHNOLOGIES SAS Software and KIWIPWATCH 5 is provided by third parties over which KIWIP TECHNOLOGIES SAS 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 the sole responsibility of said third parties, so that KIWIP TECHNOLOGIES SAS cannot be held liable for any interruption of service related to satellite systems.
The User understands, acknowledges and finally accepts that access to certain features of the KIWIP TECHNOLOGIES SAS Software and, therefore, of the KIWIPWATCH 5, requires a SIM card and a call number allowing the KIWIPWATCH 5 to send alerts on the number(s) chosen by the User via the application to transmit in real time the GPS coordinates enabling the use of the product’s geolocation services and to receive and make voice calls if and only if the SIM card package includes a subscription to the KIWIP service or to a national “data” operator.
Each call from the watch will be limited to a duration of 5 (five) minutes for reasons of safety in the use of the watch.
Each Voice Chat Message will be limited to 20 (twenty) seconds for reasons of optimisation of the use of the watch by children.
This European zone included in Kiwip services is limited to the following countries only: Mainland France, Austria, Germany, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Spain, Sweden, Switzerland, and the United Kingdom. The outermost regions are not included. Other countries will be invoiced outside the fixed price according to consumption and a scale communicated specifically for the country where the watch is used.
The User accepts and acknowledges that he or she is solely responsible for this SIM card and for the payment of any third-party fees related to its acquisition and use for the KIWIPWATCH 5, and that KIWIP TECHNOLOGIES SAS has no control over the supply, quality, availability and security of the SIM card and associated services, provided by third parties and under their responsibility, so that KIWIP TECHNOLOGIES SAS cannot be held liable for any interruption of the service related to the GSM/GPRS systems.
KIWIPWATCH 5 may, like all electronic equipment, not function as expected and may not transmit a GPS position. In such a case, the liability of KIWIP TECHNOLOGIES SAS cannot exceed the reimbursement of the purchase price of the KIWIPWATCH 5, as set out in Article 9.
The User acknowledges that KIWIPWATCH 5 is only a communication and location assistance tool for which he or she is responsible and can in no way replace the direct supervision by the referring User of the said users.
Consequently, KIWIP TECHNOLOGIES SAS cannot be held liable for any direct, indirect, accidental, special, accessory or other prejudice suffered by the User and/or the persons monitored, during the use or impossibility of use of the KIWIPWATCH 5.
The User furthermore declares using the KIWIPWATCH 5 for strictly private purposes and to the exclusion of any professional use and in accordance with the applicable laws. In general, the geolocation of third parties by the User via KIWIPWATCH 5 is therefore carried out under the sole responsibility of the User, in full compliance with the applicable laws.
KIWIP TECHNOLOGIES SAS reserves the right to terminate the License, ipso jure and without notice, in the event that the User should use KIWIPWATCH 5 in violation of the laws and regulations applicable to the User.
In accordance with the regulations in force, KIWIP TECHNOLOGIES has made a declaration to the Commission Nationale Informatique et Libertés (CNIL) of the collection and processing of personal data carried out via the KIWIP TECHNOLOGIES website whose URL is as follows: http://www.kiwip.com CNIL FILE number: 2004688
KIWIP TECHNOLOGIES SAS provides users with a paid service with a 12-month commitment.
If the user wishes to end the Kiwip service cash withdrawals. He or she will have to respect the rules below.
You are free to terminate your contract at any time, subject to 1 month’s advance notice. To do so, you will have to send a registered letter with acknowledgement of receipt mentioning your name, first name, user account number and telephone number of the watch on plain paper so that we can process your request.
Your contract includes a future commitment date.
Your early termination entails the payment of compensation (monthly instalments remaining due until the end of the minimum period) and termination fees. These fees correspond to the bank charges and the sum of the total amount of the outstanding monthly instalments.
The request for cancellation must be made in writing and sent by registered mail with acknowledgement of receipt. You must provide documentary evidence for the content of the letter and for the reason given.
Reminder: By selecting the Free Operator offer, the user must choose a new telecom operator and no number portability will be possible.
In the event of non-compliance with the terms of use of the Kiwip Technologies service and/or despite advance notice, there is a delay or default in payment, then Kiwip Technologies may terminate the user’s service within a maximum of 24 hours and claim reimbursement of the sums due, including bank charges.
As an exception to the provisions in force, the Company may terminate the Subscriptions immediately and without notice, in the event of serious or repeated failure by the Customer to meet his or her obligations under the GTCS and GTOS, in the event of non-payment of its Subscription, regardless of the Subscription formula chosen, or in the event of a request from the appropriate administrative authorities.
The balance of the Subscription fees due until the end of the current contractual period is owed in full by the Customer to the Company and then becomes immediately due and payable.
Any fraudulent use of the Kiwip SIM Card in a device other than the KiwipWatch will result in the immediate cessation of all Kiwip Technologies services.
Any additional costs that may result will be borne by the customer. All costs related to calls or data or SMS sent to numbers other than those pre-recorded in the watch and in the authorised coverage area, will be automatically charged to the customer as well as the penalties related to this fraudulent use.