Batch Service Agreement

This Service shall be made between you or your company or organization (“You” or the “Client”) and IMEDIAPP, Société Anonyme, registered to the Trade Register of Paris under number 525 279 600, 43, Rue Beaubourg, 75003 Paris, France, duly represented by Simon DAWLAT, as President (hereafter “Batch”).

Whereas

Batch is a relational marketing platform allowing web/mobile sites and/or app editors to use their data for specific push notifications campaigns on different current platforms (Apple iOS, Google Android and Windows Phone) and/or straight to their web / mobile sites. Batch services are delivered under SaaS (Software as a service) mode. The implementation of the services into Client’s app is made through the integration of Batch’s SDK (Software Development Kit). The Client is editor of one or several app and/or web / mobile sites for which Client wishes to use Batch services in order to liaise with end-users. 

The present Agreement includes, in the following rank, these documents: (i) the present General Terms & Conditions, (ii) any commercial document issued by Batch such as a purchase order or similar document, (iii) the Privacy policy (https://batch.com/privacy-policy) and the case may be, (iv) any schedule (together the “Agreement”). Should you wish specific conditions, please contact our sales team sales@batch.com.

Services are intended exclusively for professionals, understood as any person or entity who has a regular remunerated activity in any branch of trade or industry.

1. Purpose

The purpose of this document is to define the terms and conditions of use of the services provided by Batch and subscribed by the Client (hereinafter referred to as the "Services") as well as to define the rights and obligations of the different parties within this framework, in particular the users of the Services. The Website provides for specific terminology which could be used in the following Terms and Conditions. The Services can be accessed through the website https://dashboard.batch.com (hereinafter referred to as the "Website"). The software development kit (“SDK”) can be downloaded in the Website (https://batch.com/download), subject to the following Terms and Conditions.

2. Account

Batch shall create an account in Client’s name (hereinafter referred to as the "Account"), giving Client access to his own personal space (hereinafter referred to as the "Personal Space") which shall enable him to use the Services in a format and according to the technical means that Batch deems the most appropriate for providing said Services. The Client guarantees that all information he provides for is exact, up to date and sincere and is in no way misleading or dishonest. The Client agrees to immediately update the information in his Personal Space in the event that any of it should change in order to continuously meet the above-mentioned criteria. The Client is hereby informed and accepts that the information provided by him for the update of his Account is valid as proof of his identity. Details entered by Client shall be binding upon confirmation. The Client can access his Personal Space by logging in to the Website using his connection ID and his password. The Client agrees to use the Services himself personally and agrees not to allow any third party to use him on his behalf, unless accepting full responsibility for the consequences. Any use of the Services with the ID and password shall be deemed made by the according Client. In the same way, Client is responsible for keeping his connection ID and password confidential and safe. The Client must contact Batch immediately if he notices that his account has been used without his knowledge. The Client acknowledges Batch’s right to take all measures it deems appropriate in a case such as this, including (but not limited to) the closing of the account / Personal Space.

3. SDK

Batch allows Client to download the appropriate SDK according to the platform used by the Client. The Client must ensure he is entitled and able to understand, agree and respect the API policies of the respective platform editors (such as Apple, Google, etc.). Before downloading the SDK, it is strongly recommended to read the documentation set out in the Website (https://doc.batch.com), notably regarding the setup and parameterizing of the SDK. Additional fees shall be invoiced if the Client requires additional services.

4. Access and use of the services and the platform

The Client shall have access to the following Services, in conditions and according to the technical means that Batch deems the most appropriate. The functionalities of each module are described on the Website. Each module has an "analytics" function which enables the Client to see the performance and effectiveness of marketing campaigns.

Push App

Batch provides a “Push” module specific to apps that helps Client to be proactive and communicate with end-users.

Push Web

Batch provides a “Push” specific to websites module that helps Client to be proactive and communicate with end-users.

Email

Batch offers an "Email" module that helps the Client to be proactive in its communication with end-users. The Client declares that he is aware of the specific rules for sending emails, whether under (i) the legislation applicable in the countries to which the Client sends emails with the "Email" Services, (ii) the rules and guidelines of the main technical intermediaries and email service providers / email inbox service providers (e.g. Google, Microsoft) and (iii) this Agreement.

SMS

Batch offers an "SMS" module that helps the Client to be proactive in its communication with End-users. The list of available countries is displayed on the Site and changes over time. The Client declares that he is aware of the specific rules for sending SMS, whether under (i) the legislation applicable in the countries to which the Client sends emails with the "SMS" Services and (ii) this Agreement.

POC

The case may be and according to the commercial agreement between Batch and the Client, Batch may grant the Client a right to use the Services in the framework of a Proof of Concept (“POC”) for a limited duration and for the sole purpose of the valuation of the Services and the adequation of the Services to its needs. The Client may stop, with a fifteen (15) days prior written notice, the Agreement during this POC period. Without such notice, the Agreement shall continue for the duration set out in commercial agreement between Batch and the Client, on a non-POC basis. The use of the Services by the Client within the framework of the POC is granted for free. After this period, the applicable prices shall be set out in the commercial agreement between Batch and the Client and, in case of interpretation, the tariffs displayed on the Website.

Beta

Under certain circumstances, the Client may request from Batch the possibility to test the Services or functionality for a certain period of time. Subject to Batch's acceptance and under specific financial conditions granted by Batch, the Client shall be entitled to test the Services concerned and/or the functionality concerned at its own risk, without any guarantee, SLA, indemnification or liability. Taking into account these specific financial conditions, the Client shall inform Batch as soon as possible of any anomaly, malfunction or poor performance, answer Batch's questions and assist Batch in certain operations as reasonably requested by Batch.

Setup

Under certain circumstances, the Parties may set up the Services in the Client's environment. The Client shall communicate all useful information and Batch shall assist the Client in the setup phasis. The Client may request reasonable modification of the setup operations and/or of any operation that does not comply with the Agreement. The Client is the only one entitled to launch the Services live. Any launch implies acceptance of the setup phase.

Reversibility

Batch undertakes to facilitate the reversibility / transferability in the best possible conditions. The Client can, anytime, take back its own data in an open format in its Personal Space. Should the Client request further assistance or operation, Batch shall provide the Client with an estimate based on the tariffs applicable at the date of the request by the Client.

General

Batch takes care and monitors its Website and Services actively and constantly, in order to detect and solve issues actively. 

Upon request of the Client and acceptance of Batch, Batch could deliver specific consultancy services. These services shall be defined by the parties and confirmed by Batch. These services shall be invoiced according to (i) the general principles as set out in the present Agreement and (ii) the prices defined by the parties.

Each Party shall be entitled to display, solely in post-use, on any support, the partnership between Batch and the Client, notably by displaying the logo of the other Party. The Client hereby agrees to participate to a communication campaign, including a video with Batch, the production of a case study, social network posts to highlight the partnership and the receipt of calls from prospects as a commercial reference.

5. Duration

The Agreement begins for the fixed duration provided in the order (the “Initial Term”). 

Should the term be fixed, it is then automatically renewed for succeeding terms which duration shall be equal to the Initial Term, terminable with a 3 months-notice by letter with acknowledgement of receipt before the Agreement anniversary date. If the Client fails to comply with the time and formalities of the notice for non-renewal of the Agreement (such as sending an email rather than a registered letter or not complying with the prior notice period), the Agreement shall renew automatically. 

Should the term be unlimited (“indéterminé”), it is then automatically renewed for a unlimited duration terminable anytime with a 3 months-notice by letter with acknowledgement of receipt. If the Client fails to comply with the time and formalities of the notice for non-renewal of the Agreement (such as sending an email rather than a registered letter or not complying with the prior notice period), the Agreement shall continue. 

In the event of a breach by a Party of any of the provisions of this Agreement or more generally of the applicable laws, the other Party reserves the right either to suspend the performance of the present Agreement or, with a prior formal notice (except in case of serious misconduct as estimated by non-defaulting Party) remained without effect more than 15 days, fully (de plein droit) take any measures it deems appropriate without further formality, and in particular to terminate the Agreement and thus, without prejudice to its other rights.

6. Financial conditions

The prices are referred to in the order.

Each order defines the prices for (i) a corporate perimeter (entities directly controlled by the Client within the meaning of Article L.233-3-1 of the French Commercial Code on the date of signature of the order), (ii) a perimeter of Services, functionality and modules referred to in the order and (iii) the thresholds referred to in the order. Any excess of this scope (such as new Services or new functionality) shall trigger the modification of the prices in accordance with the rates applicable on the day of the said overrun. Any crossing of a threshold shall automatically and irreversibly trigger the application of the prices of the threshold concerned.

The prices are expressed exclusive of any tax. 

Invoicing is carried out in consideration of the rights of access and use of the Services and not according to the actual use. The Services are therefore invoiced in accordance with this Agreement, whether or not they are used. Failure to use or reach a threshold or package, whether over a given period or the duration of the Agreement, shall not entitle the Client to a reduction in price, carry over of the unconsumed threshold or package or a credit. No price is refundable.

The price is invoiced in accordance with the orders, in advance. Batch sends its invoices by email or similar in accordance with the applicable laws. The Client must provide and update an email address to receive the invoice.

The Client is hereby informed and expressly agrees that any payment delay of all or part of an amount, within the framework of this Agreement, at its due term, shall automatically entail, without prejudice to Batch’s other rights and with a 8 days prior formal notice (or immediately in case of emergency as reasonably estimated by Batch):

• immediate suspension of current Services until complete payment by the Client of all amounts due,

• invoicing of a late payment interest, for Batch’s benefit, at the rate of 3 times (three times) the legal interest rate, calculated on the total of all amounts due by the Client,

• invoicing a lump sum of 40€ for the collection costs.

7. Use of services

The Client:

• agrees, in the use of the Services, to respect and abide by all laws and regulations in force and not to violate public order or infringe the rights of any third party. The Client is solely responsible for successfully completing all necessary administrative, tax and/or social formalities concerning them that could result from the use of the Services. Batch shall in no case be held liable in this respect.

• acknowledges having read on the Website and understood from Batch all characteristics and constraints, technical in particular, of the entire range of Services. The Client is solely responsible for the use of the Services.

• undertakes to use the Services himself personally. The Client shall not transfer, sublicense, delegate or assign all or part of the rights under the present general terms and conditions of use to any third party.

• undertakes to use the SDK and the Services properly and on a reasonable basis. The Client shall provide with accurate, proper and adequate information and data. In the event that a product is mistakenly listed, or at an incorrect price or with incorrect specifications or that information is not compliant with the present Terms and Conditions, Batch reserves the right to refuse or cancel any order placed for product listed incorrectly, whether or not the order has been confirmed.

The Client agrees not to (or authorize or encourage any third party to) use the SDK, or the Services, generally, to:

• any act, declaration or omission caused by or in relation to the violation of the law and/or any applicable regulation and/or the present Terms & Conditions and/or platforms Guidelines / Terms & Conditions;

• generate fraudulent impressions or fraudulent clicks for any advertisement, including but not limited to, through repeated manual clicks, the use of robots or other automated query tools and/or computer generated search requests, and/or the fraudulent use of other search engine optimization services and/or software;

• forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Services;

• upload, post, email or otherwise transmit any content that Client does not have a right to transmit under any law or under contractual or fiduciary relationships;

• “spam” through the Services, or any processes that run or are activated while Client is not logged in;

• interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;

• “stalk” or otherwise harass another; and/or

• circumvent any usage or access limits on use of the SDK or the Service;

• make unlawful campaigns, aggressive marketing messages, use of robots or mechanisms prohibited by platforms editors (like Apple or Google), as well as any damage to Batch servers, bandwidth, or information systems, as reasonable estimated by Batch;

• make money from, sell or concede all or part of one's access to the Services or to the information that is hosted and/or shared on the Website; and/or

• conceive, realize, develop and/or make a system, application, software and/or modules that compete the Services.

With regard to the SMS and/or Email Services, the Client agrees to:

• only provide Batch with an opt-in database (i.e. collected solely on the basis of explicit consent) and to provide any demonstration in this regard, at Batch's first request. The Client prohibits to use purchased / rented third party’s database for the use of the Services. Accordingly, the Client undertakes (i) to respect (or make respect) the rules governing the collection of opt-ins and in particular, not to pre-check the opt-in boxes and ensure that the person has full knowledge of the content to which he subscribes, (ii) to add (or make add) a clearly identifiable opt-out link in marketing messages and to make the opt-out procedure easy for the user. The Client is very encouraged to implement a double opt-in procedure;

• ensure the quality of the data provided in that they must be up to date (for example, the email address of a End-user must be correct) and collected legally and in accordance with the objectives pursued by the Client in subscribing to Batch's Email Services;

• transmit to Batch only data or information of which the Client is owner, assignee or licensee. Accordingly, the Client not to base or address messages to emails scraped on the Internet and / or to automatically send emails from forms without any protection (eg, captcha) against bots automatically filling forms with incorrect data;

• to notify any unauthorized use of Batch as soon as he becomes aware of it and to take corrective measures to put an end to it and to prevent its repetition;

• to use the Services only for the purposes hereof;

• solely for the “Email” Services, ensure that the email addresses and the sending plan do not disrupt the Batch Services and do not create rejection by the technical intermediaries (impact on the reputation and/or blacklisting of DNS or IP addresses of Batch, etc...). Accordingly, the Client undertakes to (i) notify Batch in the event of sending a volume extremely higher than its usual sending volume, (ii) to have a "legitimate" website (in the sense given by the email service providers / email inbox providers) linked to the sending domain name, (iii) to indicate a physical address in the footer of the email and (iv) not to send marketing messages to inactive emails (who have not opened or clicked on messages for a very long period of time, which is assessed according to the sector of activity).

8. Liability & representation

Batch guarantees to the Client that he shall use peacefully the SDK and the Services during the duration of the Agreement subject to the respect, by the Client, of the present Agreement and the laws. Batch shall have no liability for claims or losses to the extent arising from: (i) modification of the Services by anyone other than Batch; (ii) use of the Services in a manner inconsistent with this Agreement or the documentation or in violation of this Agreement; or (iii) if such loss or claim is in relation to the use of the Services in combination with any other product or service not provided by Batch. Accordingly, Batch shall, within the indemnification limits of the present Agreement, fully indemnify, hold harmless and defend the Client from and against all claims, demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable attorney's fees and costs), whether or not involving a third party claim based on a European patent or trademark or an unfair competition act, which arise out of (i) any violation of the present Agreement or (ii) Client’s use of the SDK and/or the Services. This guarantee is subject to the following conditions: (a) the Client must alert promptly Batch, (b) the Client must cooperate and provide Batch with any and all necessary information and elements and (c) Batch shall keep the monopole of the argumentation towards any court or authority. 

Batch agrees to provide the Services with diligence and in compliance with trade practice, specifying that it has an obligation to provide means (obligation de moyens), but this without any obligation of result, and this is expressly acknowledged and agreed by the Client. Batch does not guarantee any result of campaign, threshold, target or figure or recruitments. SDK, Services and reports are provided “AS IS” and on an “AS AVAILABLE” basis without warranty or condition of any kind, except expressly provided in the present Agreement.

Batch’s intervention is limited to the provision of the Services. Batch claims no ownership or control over content stored and indexed within the context of the Services. Consequently, Batch cannot be held liable for such content, with regard to which Batch only intervenes within the role of hosting provider. The Client acknowledges and agrees that Batch may communicate and/or suppress from the Services any unlawful content that Batch may have knowledge of, especially (but not limited to) due to a claim from a third party or in case of a court decision. Batch shall make its reasonable efforts to warn the Client before any communication and/or suppression, being understood that, in case of any administrative / judicial procedure, authorities and third parties may demand communication and/or cancellation without any prior notice.

Each party warrants that it has the authority to enter into this Agreement and, in connection with its performance of this Agreement, shall comply with all applicable laws. Batch warrants that during the Term: (i) the Services shall perform materially in accordance with the documentation; (ii) the functionality of the Services will not be materially decreased; and (iii) to the best of Batch’s knowledge, the Services do not contain, and Batch will not knowingly introduce, any viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents or programs. Batch does not guarantee the Client (i) that the Services, which are subject to constant research to improve their performance and progress, will be totally free of errors, faults or defects, (ii) that the Services, being standard and not offered specifically to any one given the Client according to that Client’s own personal constraints, shall specifically meet that Client’s needs or expectations.

The Client warrants Batch for its use of the SDK and the Services during the duration of the Agreement. This warranty is subject to the respect, by Batch, of the present Agreement and the applicable laws. The Client (i) acknowledges that a large number of countries have different legislation specific to electronic communications and commercial prospection, (ii) declares that it is familiar such legislation, and (iii) guarantees that it will use the Services in compliance with such legislation. Accordingly, the Client shall fully indemnify, hold harmless and defend Batch from and against all claims, demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable attorney's fees and costs), whether or not involving a third party claim, which arise out of or relate to (i) any violation of the present Agreement, (ii) Client’s use of the SDK and/or the Services or (iii) the unauthorized use of the SDK and/or the Services. This warranty is subject to the fact that (a) Batch has promptly notified the Client of such demand or action, (b) Batch fully cooperates and provides all information necessary to the Client and (c) the Client and Batch participate in the argument.

In any event, any liability that could be incurred by Batch within the framework of this Agreement is expressly and solely limited to direct actual damages suffered by the Client and shall not exceed, all faults and damages aggregated, the total amount paid by the Client concerned within the year preceding these damages. Any procedure against Batch must be started within one (1) year following the damage concerned.

9. Intellectual property

Batch reserves ownership of all intellectual property rights inherent in or relating to the Services. The Client is only granted a revocable, non-transferable, non-exclusive and non-sublicensable license to use the Services and the SDK solely to access Batch platform and within the limits and conditions set out in the present General Terms and Conditions, and for the duration of the Agreement. Batch shall retain all rights and titles in relation to software, SDK and Services and keeps the right to fix software and SDK the case may be.

Batch respects the intellectual property of others. If the Client or any third party believes that work has been copied in a way that constitutes copyright infringement, please contact us at hello@batch.com.

10. Confidentiality

THE PARTIES UNDERTAKE TO KEEP AS CONFIDENTIAL, DURING THE TERM OF THIS CONTRACT AS WELL AS 12 MONTHS AFTER ITS END ALL INFORMATION DATA OR DOCUMENTS ISSUED BY ONE OF THE PARTIES TO THE OTHER FOR THE PURPOSES OF THIS CONTRACT. CONFIDENTIAL INFORMATION SHALL INCLUDE, WITHOUT ANY RESERVATION, ANY CONCEPT, TRADE SECRETS, KNOW HOW, INVENTIONS, TECHNIQUES, PROCESSES, PROGRAMS, SCHEMATICS, SOFTWARE SOURCE DOCUMENTS, DATA, CUSTOMER LISTS, FINANCIAL INFORMATION AND SALES AND MARKETING PLANS ("CONFIDENTIAL INFORMATION"). All Confidential Information are considered to be “trade secrets” in accordance with the Commercial Code. The Parties undertake that the Confidential Information communicated within the scope of the services (i) shall be protected and remain strictly confidential and will not be disclosed either directly or indirectly to any third party and (ii) shall not be reproduced, copied, duplicated either partly or totally, without the prior express Contract of the Party which issued the information and (iii) shall only be communicated to the personnel of the other Party for the purposes of the services and provided that the personnel of the said Party assigned to the services are bound by a confidentiality.

11. MISC

Batch is attached to the importance of the compliance to GDPR and personal data protection legislations. Privacy Policy (https://batch.com/privacy-policy) provides for the rights and obligations of both Parties.

The Agreement (including any appendix and/or amendment) constitutes the full, complete, final and integrated agreement between the Parties hereto relating to the subject matter hereof and supersedes all previous written or oral negotiations, commitments, agreements, transactions, or understandings with respect to the subject matter hereof. In the event of any inconsistency in respect of any non-technical terms between this Agreement, the terms of this Agreement shall prevail. Any projection of figures, whatever it is, is made only as an indication for the Parties and without any contractual value.

The Parties shall be deemed to be independent contractors, and this Agreement shall not be construed to create between Batch and the Client any other relationship, whether employer-employee, principal-agent, joint-venturer, co-partners or otherwise. Neither Party shall have authority to act for or bind the other Party in any manner, whatsoever. Any contracts and agreements entered into by one Party (but not the other) shall be for that Party’s sole account and risk, and such contracts and agreements shall not bind the other Party in any respect.

No amendment, modification or discharge of this Agreement, and no waiver hereunder, shall be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of the amendment, modification, discharge or waiver is sought. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Neither the waiver by any of the Parties hereto of a breach of or a default under any of the provisions of this Agreement, nor the failure by any of the parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder, shall be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder. The rights and remedies herein provided are cumulative and none is exclusive of any other, or of any rights or remedies that any Party may otherwise have at law or in equity.

Neither party shall be liable for any failure or delay in performance under this Agreement for causes beyond that party’s reasonable control and recognized as a force majeure event by the relevant jurisprudence (including riot, civil war and pandemics) and so occurring without that party’s fault or negligence. Dates by which performance obligations are scheduled to be met will be extended for a period equal to the time lost due to any delay so caused.

In the event of the transfer of a business, partial contribution of assets, contribution to a company or similar operation or the transfer of the shares of one or more entities of the Client’s group, beneficiaries of the Services, to a third party, (i) the Client will immediately inform Batch in writing of such a transaction and (ii) such entity or entities will continue to receive the Services until the end of the contractual term and under the contractual conditions set out herein, it being specified that Batch will then invoice the entity or entities concerned on a pro rata basis, such invoices being jointly and severally due by the Client. In any case, there is no intuitu personae, the modification of the share capital or the transfer of a Party shall not trigger any modification of the present Agreement. In the event of a business transfer, Batch will invoice the transferee if (i) the transferee alerts Batch and (ii) Batch accepts or, failing that, the transferor (the Client).

12. Law / Jurisdiction

This Agreement is governed by French law. 

IN THE EVENT OF DISPUTE CONCERNING THE VALIDITY, INTERPRETATION AND/OR APPLICATION OF THIS AGREEMENT, ALL PARTIES AGREE TO TRY TO REACH AN OUT-OF-COURT AGREEMENT IN A REASONABLE TIMEFRAME. ACCORDINGLY, ALL DISPUTES ARISING OUT OF OR IN CONNECTION WITH THE VALIDITY, INTERPRETATION, PERFORMANCE, NON-PERFORMANCE OR TERMINATION OF THIS AGREEMENT SHALL BE SUBMITTED TO MEDIATION UNDER THE CMAP (CENTRE FOR MEDIATION AND ARBITRATION OF PARIS) RULES OF MEDIATION TO WHICH THE PARTIES UNDERTAKE TO ADHERE.

IN THE EVENT OF DISPUTE CONCERNING THE VALIDITY, INTERPRETATION AND/OR APPLICATION OF THIS AGREEMENT, ALL PARTIES AGREE THAT THE COURTS OF PARIS SHALL BE THE ONLY COMPETENT JURISDICTION CAPABLE OF JUDGING THE DISPUTE, SAVE CONFLICTING MANDATORY RULES OF PRACTICE

© Batch – Updated September 2024