Date of last revision: June 14, 2016
PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT ORDER/KEEP YOUR PRODUCT.
HIKARI Software, a French corporation ("Hikashop", "We") develops and publishes an open source software solution including certain chargeable third party products or tools and provides (under certain conditions) a technical assistance (collectively the “Services”), released under free license, which allows its users to manage an online store, process orders and sell products online and other services.
You agree that You have read and understand, and have the capacity and authority to accept, agree to and be bound by these Terms.
Indeed, the Services are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to individuals under the age of 18. If You do not qualify, please do not use the Services.
1. Amendment to the Terms
Hikashop may make changes or modifications to this Agreement at any time, and such changes or modifications are effective immediately upon the earliest of (a) Hikashop’s email notification to You advising You of such changes or modifications, (b) your electronic acceptance of this Agreement after such changes or modifications have been made to this Agreement as indicated by the "Date of Last Revision" date at the top of the Terms, or (c) your continued use of the Services after Hikashop posts the updated Agreement to www.hikashop.com. In addition, when using particular Hikashop services, You and Hikashop will be subject to any posted guidelines or rules applicable to such Services that may be posted from time to time.
2. Scope of the Services
2.1. Software solution
The Services are designed to allow people from all over the world to easily manage and promote their businesses by creating online stores based on an open software solution to download, with a modular architecture which allows customization. Besides, Hikashop provides You with numerous tools and features such as modules (languages) and themes (styles, templates), and third party products for creating and publishing stunning personalized online stores, by combining your own content together with content and features offered by Hikashop.
Notwithstanding the foregoing, by using the Services, You remain responsible for i) having your online store hosted by the professional host of your choice or by yourself and, ii) reserving the desired domain name of your online store.
Hikashop shall in no event be held liable for loss or damage that could result from the hosting of your online store and/or the registration of your domain name (including but not limited to: loss of data, unavailability of the requested domain name, etc.).
The basic version of this solution, which can be downloaded free-of- charge, and the paid versions which include more features, are available from the Hikashop website at: www.hikashop.com.
2.2. Third party products
To complete our software solution with some specific e-commerce features (auctions, multi-vendor, front edition, legal pack, etc.), You may purchase certain third party products for enhancing your online store.
You acknowledge and agree that regardless of the manner in which such third party products may be offered to You, Hikashop merely acts as an intermediary platform between you and such third party products, and does not in any way endorse any such third party products, or shall be in any way responsible or liable with respect thereto.
While we hope to avoid such instances, Hikashop may, at any time and at its sole discretion, remove from sale on its website any third party products without any liability to You.
2.3. Technical assistance / Update & upgrade
2.3.1. Hikashop “Starter”
The basic version of the software solution, which is free-of- charge, does not include any technical assistance other than the Documentation and the Frequently Asked Questions (“FAQ”) pages, permanently available on Hikashop website. Besides, You do not take advantage of any update or upgrade of the Services made available from time to time by Hikashop.
2.3.2. Hikashop “Essential” & “Business”
The paid versions include a technical assistance which is provided via email and through your User account by connecting to the forum of Hikashop’s support.
Thus, if You cannot find the answer to your question neither in the documentation nor in the FAQ pages, please feel free to contact us and describe in a detailed manner the issue(s) encountered.
The technical assistance is provided during normal business hours (Monday through Friday, between the hours of 9am to 6pm, Paris time - GMT+1, excluding statutory holidays). At this time, the technical assistance is available in French and English only.
Having said that, Hikashop would more specifically remind You that:
- The technical assistance covers incident-based support (bugs, errors, etc.), installation issues and configuration support of a single online store;
- Hikashop will provide technical assistance by replying as quickly as possible to your questions and comments, without representation or warranty on Hikashop’s part as to provide a solution or a response time.
- To be eligible for technical assistance, your paid version must be covered by an active support plan. Indeed, when You purchase any paid version of our software solution You will benefit from our technical assistance for one (1) year, and You will take advantage of any update or upgrade of the Services made available from time to time by Hikashop. At the expiration of this term, You have to extend your membership by ordering a new coverage period of technical assistance. Otherwise, You may continue to use the software solution and any third party products but You won’t be able to reach the technical assistance, and You will not take advantage of any update or upgrade of the Services made available from time to time by Hikashop.
You expressly undertake and agree that Hikashop is only held by an obligation of means regarding the provision of the technical assistance.
2.3.3. Termination or suspension of the technical assistance
Hikashop may unilaterally suspend (for a limited time period, no longer than ninety (90) calendar days, at the discretion of Hikashop) or simply terminate your right to access and use the technical assistance, by addressing notification to You by any means and without further formalities in any of the following cases:
- Non-payment of all or any part the Services;
- Illegal or disloyal use of the Services;
- Behavior likely to damage the image of Hikashop;
Suspension or termination of the technical assistance for any one of the above reasons shall not entitle You to any refund. It is further specified that the present clause exempts Hikashop from terminating the technical assistance by means of legal action.
3. User account
You must complete a registration form which allows You to order the Services and then download the software solution. You will provide true, accurate, current, and complete information about You as requested in the registration form, and will update the information to keep it current. As part of the registration process, You will identify an email address and password for your Hikashop account.
You are responsible for maintaining the security of your account and password. Hikashop reserves the right to refuse registration of, or cancel, accounts it deems inappropriate.
Your User account allows You, when applicable, to reach the technical assistance provided on the Hikashop website.
4. Your obligations
You are solely responsible for your products and/or services and e-commerce related activities, and any promotions and related content contained or referred to in your online store and compliance with any laws applicable thereto. Hikashop is not involved in your relationship and/or any transaction with any actual or potential buyer of your products and/or services. When someone purchases your products and/or services, such transaction’s payments will be processed through such third party payment service providers with which You decided to register and set up an account, in accordance with such third party payment service provider’s terms of service and other applicable policies. Hikashop is neither a party to nor is responsible in any way for your relationship with any such third party payment service providers, or for the actions of any of these third party payment service providers.
By using the Services, You acknowledge, warrant and agree that:
- You shall be solely and fully responsible for all taxes and fees of any nature associated with your online store, including any taxes related to the purchase or sale of your products and/or services, and to collect, report and remit the correct amounts to the appropriate authorities and/or inform your customers of such and provide them with a duly issued invoice as required by law;
- You shall be responsible for and bear all costs of procuring and delivering your products and/or services, and for providing them in a safe and professional manner, consistent with industry standards;
- You are solely responsible for any and all statements and promises you make and for all assistance, warranty and support regarding the products and/or services, and shall provide true contact information in your online store for any questions, complaints or claims;
- You may not offer or sell any products and/or services, or provide any information, content or material regarding your products and/or services, which may be deemed hazardous, counterfeit, stolen, fraudulent, offensive or abusive; which are prohibited for sale, distribution or use; or which otherwise fail to comply with any applicable laws, including with respect to consumer rights, intellectual property or privacy rights, product safety, trade regulations and sanctions, support, maintenance and export;
- You own all rights in and to any content uploaded by You, including but not limited to any images, animations, videos, audio files, logos, illustrations, interfaces, text, literary works and any other materials, or otherwise have (and will continue to have) the full power, title, licenses, consents and authority, in and to this content published on your online store, as necessary to legally use, publish, transfer or license any and all rights and interests in and to such content;
- The content uploaded by You, is (and will continue to be) true, current, accurate, non-infringing upon any third party rights;
- You have to regularly and independently save and backup the content published on your online store and the information that is being processed by You regarding your online store, including with respect to customers, products and/or services, etc.;
- Hikashop may use in perpetuity, worldwide and free of charge, any version of your online store or any part thereof for any of Hikashop’s marketing and promotional activities, online and/or offline, and modify it as reasonably required for such purposes;
- You may not submit, transmit or display any content which may be deemed as defamatory, libelous, obscene, harassing, threatening, incendiary, abusive, racist, offensive, deceptive or fraudulent, encouraging criminal or harmful conduct, or which otherwise violates the rights of Hikashop or any third party (including any intellectual property rights, privacy rights, contractual or fiduciary rights), or otherwise shows any person, entity or brand in a bad or disparaging light, without their prior explicit approval;
- You shall not remove or alter any copyright notices, and signs indicating proprietary rights of Hikashop and any of our licensors, including copyright mark [©], Creative Commons [(cc)] indicators, or trademarks [® or ™] contained in or accompanying the Services; and
- You shall not act in a manner which might be perceived as damaging to Hikashop’s reputation and goodwill or which may bring Hikashop into disrepute or harm;
5. Fees and payment
The basic version of Hikashop (“Starter”) is downloadable free-of- charge from Hikashop website.
In consideration of the paid versions and the Services provided to You, You will pay Hikashop all fees due according to the prices and terms listed on the Hikashop website. Hikashop reserves the right to modify its pricing and terms at any time, and such changes or modifications will be posted on the website and effective immediately upon the next renewal/order of the Services with and/or without prior notice.
All fees are exclusive of all federal, state, and/or other governmental sales, goods and services, value- added, harmonized or other taxes, fees or charges. You shall be responsible for all sales, goods and services, value-added, harmonized or other taxes, fees or charges, when applicable.
Payment must be made via credit or debit card, via PayPal, via wire transfer or other means as specified on the payment page. You confirm that the credit/debit card that is being used is yours. All credit/debit card holders are subject to validation checks and authorization by the card issuer.
Fraudulent use of credit cards will be reported to the relevant authorities. If the issuer of your card refuses to authorize payment, Hikashop will not accept your order and Hikashop will not be responsible for any delay or non-delivery and Hikashop is not obliged to inform You of the reason for the refusal.
Hikashop is not responsible for your card issuer or bank charging You as a result of our processing of your credit/debit card payment in accordance with your order.
Hikashop shall in no event be held responsible for the security of credit cardholder data given that Hikashop has no control of that data. Indeed, your transaction and the payment are directly operated by the online payment platform which manages the security of credit cardholder data. Hikashop and its partners warrant You to be fully in accordance with the Payment Card Industry Data Security Standards.
If, for any reason, You are not satisfied with the Services including any third party products, You may provide notice of cancellation within thirty (30) calendar days of having first ordered or installed the software solution or any third party products. If Hikashop receives such notice within the refund period, Hikashop will refund to you the amount You actually paid. After the refund period, the fees paid by You are non-refundable.
6. Intellectual Property
Use of the Services constitutes no transfer of intellectual property to the benefit of the other Party. Consequently, You undertake not to infringe in any manner the intellectual property rights of Hikashop or one of its partners, particularly with regard to the texts, photos, videos, data, logos, brands and other elements featured on Hikashop website for which Hikashop or one of its partners enjoys intellectual property, particularly for the software solution, the modules, the themes and any third party products.
During the use of the Services, You enjoy only the right to use the software solution for a single online store for the entire duration of the Services and worldwide. Notwithstanding the foregoing, the technical assistance is only provided to You as long as your paid version of the software solution is covered by an active support plan. Similarly, the modules, themes and third party products developed either by Hikashop or its partners remain the sole property of their owners. For these modules, themes and third party products, Hikashop grants You simple usage rights restricted to the use of a single online store for the legal duration of the copyright and worldwide starting from the date of the order for the module, theme or third party products concerned.
Any texts, photos, videos, data, logos, brands and other elements posted on the Hikashop website are reserved and protected by intellectual property rights, in particular copyrights, related rights, trademark rights and by legislation concerning the protection of personal data. Consequently, no exploitation, distribution, reproduction, or other use of these elements, even partial, may be done without the express authorization of Hikashop. Nevertheless, during the use of the Services, Hikashop authorizes You to mention its company name as a commercial reference. During the use of the Services, You expressly authorize Hikashop to mention your company name and your products and/or services and brands as commercial references. Each Party expressly undertakes not to damage the image of the other Party.
7. Personal Data
By using the Services, You acknowledge that you are making available to Hikashop your personal and commercial data. Your information and data (full name, e-mail address, and statistical data on the activity of the online store) is required by Hikashop for the management of orders and commercial relations. These data are also stored for security purposes.
When consulting your account You may elect not to receive newsletters from Hikashop. At any time, You may change these choices in your User account.
Pursuant to the amended Law No. 78-17 on IT and Privacy of January 6th 1978 and its application decrees, You dispose of a right to access and modify your information that has been collected by Hikashop and a right of opposition so that your personal data is not subject to commercial prospecting or processing.
These rights may be exercised directly on the Hikashop website or in writing by contacting: Hikashop – “Service Réclamation Données Personnelles” – 110, Avenue Barthélémy BUYER - 69009 LYON FRANCE.
Lastly, You accept that Hikashop may, in accordance with its legal obligations, collect personal data with regard to legal proceedings (legal requisitions, etc.).
8. Warranty disclaimer
HIKASHOP PROVIDES THE SERVICES ON AN “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, NON-INFRINGEMENT, OR ANY OTHER WARRANTY – ALL TO THE FULLEST EXTENT PERMITTED BY LAW. HIKASHOP SPECIFICALLY DOES NOT REPRESENT OR WARRANT THAT THE SERVICES (OR ANY PART, FEATURE OR CONTENT THEREOF) ARE COMPLETE, ACCURATE, OF ANY CERTAIN QUALITY, RELIABLE OR SECURE IN ANY WAY, SUITABLE FOR OR COMPATIBLE WITH ANY OF YOUR CONTEMPLATED ACTIVITIES, DEVICES, OPERATING SYSTEMS, BROWSERS, SOFTWARE OR TOOLS (OR THAT THEY WILL REMAIN AS SUCH AT ANY TIME), OR COMPLY WITH ANY LAWS APPLICABLE TO YOU (INCLUDING IN ANY JURISDICTION IN WHICH YOU OPERATE), OR THAT THEIR OPERATION WILL BE FREE OF ANY VIRUSES, BUGS OR OTHER HARMFUL COMPONENTS OR PROGRAM LIMITATIONS. MOREOVER, HIKASHOP DOES NOT ENDORSE ANY ENTITY, PRODUCT OR SERVICE (INCLUDING ANY THIRD PARTY PRODUCTS) MENTIONED ON OR MADE AVAILABLE VIA THE SERVICES – SO PLEASE BE SURE TO VERIFY THOSE BEFORE USING OR OTHERWISE ENGAGING THEM.
THE FOREGOING DISCLAIMER OF REPRESENTATIONS, CONDITIONS AND WARRANTIES WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THE SERVICES.
9. Limitation of liability
YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES SHALL HIKASHOP, ITS AGENTS, EXECUTIVE, OR EMPLOYEES BE LIABLE FOR ANY LOSS, COST, EXPENSE, OR DAMAGE TO YOU IN AN AMOUNT THAT COLLECTIVELY EXCEEDS THE FEES ACTUALLY PAID TO HIKASHOP FOR THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT HIKASHOP, ITS AGENTS, EXECUTIVE, OR EMPLOYEES SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL DAMAGES OR SIMILAR DAMAGES, INCLUDING ANY LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES EVEN IF HIKASHOP, ITS AGENTS, EXECUTIVE, OR EMPLOYEES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Indemnification of Hikashop
You hereby agree to defend, indemnify and hold Hikashop and its partners and the respective directors, officers, employees and agents of each harmless from and against any and all claims, losses, damages, liabilities and costs (including, without limitation, reasonable attorneys’ fees and court costs) arising out of or relating to your breach of any of these Terms or Use, except to the extent the foregoing directly result from Hikashop’s own gross negligence or willful misconduct. THIS FOREGOING INDEMNIFICATION WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THE SERVICES.
11.1. Sub-contracting of the Services
Hikashop is authorized to use the services of one or more sub-contractors of its choice to carry out all or part of the Services without giving You prior notification.
11.2. Force Majeure
Hikashop will have no liability to You or any third party for any failure by Hikashop to perform its obligations under this Agreement in the event that such non-performance arises as a result of the occurrence of an event beyond the reasonable control of Hikashop, including without limitation an act of war or terrorism, natural disaster, failure of electricity supply, riot, civil disorder, or civil commotion or other event of force majeure.
11.3. Independent Contractors
No agency, partnership, joint venture or employment is created as a result of this Agreement, and You do not have any authority of any kind to bind Hikashop in any respect whatsoever.
The failure of Hikashop to exercise or enforce any right or provision of these Terms or this Agreement will not constitute a waiver of such right or provision.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
You may not assign this Agreement without the prior written consent of Hikashop, which Hikashop may refuse in its sole discretion. Any attempt by You to assign this Agreement without prior written consent from Hikashop will be deemed null and void. Hikashop may assign this Agreement at any time. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
11.7. Applicable law – Assignment of Jurisdiction
The present Agreement is governed by French law. In the event of a dispute between the Parties with regard to the performance of the Agreement, each Party shall do its best to settle such dispute by means of conciliation. Failing conciliation, the Parties agree to submit the dispute to the jurisdiction of the Lyon commercial court (France), notwithstanding plurality of defendants or the introduction of third parties, emergency proceedings or summary procedures. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms and is hereby expressly excluded.