Terms & Conditions
THE CONDITION TO THE USE OF THE SERVICE BY THE CLIENT IS THAT THE CLIENT AGREES TO BE BOUND BY THE FOLLOWING GENERAL TERMS AND CONDITIONS (‘GENERAL TERMS’). BY USING THE SERVICE, THE CLIENT AGREES TO HAVE READ AND UNDERSTOOD THESE GENERAL TERMS AND ACCEPTED THEM.
1. Acceptance of the Terms and Conditions (‘General Terms’)
1.1. These General Terms govern the services offered by FEELIN SA and supersede all other terms and conditions, including those of the Client.
1.2. You are requested to read the General Terms carefully before making any order and to keep them for your records. By signing and sending an order, you confirm that you are legally bound by these General Terms, as amended from time to time.
1.3. The person who makes the order on the Client’s behalf declares that he or she has the mandate to do so and is authorised to bind the Client to these General Terms.
2.1. Capitalised terms used in these General Terms shall have the following meaning:
– Agreement :
Means these General Terms and any Order referencing these General Terms, and any other schedules, supplements, statements of work, exhibits or appendices thereto, whether attached or incorporated by reference;
– Client : means any entity or self-employed acting in a professional capacity placing entity that has consented to the Agreement: (i) by execution of an Order that references these General Terms; (ii) by having started using the Service; or (iii) by any other legally binding method of acceptance of the Agreement;
– Confidential Information : means, with respect to the Client and FEELIN, the data, marketing and business plans and/or financial information. In addition to the foregoing, Confidential Information of either FEELIN or the Client (the Party disclosing such information being the “Disclosing Party” and the Party receiving such information being the “Receiving Party”) may also include information which the Disclosing Party protects against unrestricted disclosure to others that (i) the Disclosing Party or its representatives designates as confidential at the time of disclosure; or (ii) should reasonably be understood by the Receiving Party to be confidential given the nature of the information and the circumstances surrounding its disclosure;
– FEELIN : means FEELIN SA whose registered office is located in Chemin du Cyclotron 6, 1348 Ottignies-Louvain-la-Neuve, registered at the Crossroads Bank for Enterprises under the number 0741.810.963;
– FEELIN’ System : means the solutions, services and products offered to the any user via the App FEELIN, the FEELIN platform and the website www.feelin.be ; www.app.feelin.be;
– Services : mean behavioral analysis studies, including services of eye tracking and emotion recognition analysis of Client’s video ads provided by FEELIN via its App and any analysis or feedback given to the Client in this regard;
– Order : means any order of Services related to one or more video files to be uploaded in the FEELIN System;
– Party or Parties shall mean each of FEELIN or the Client or FEELIN and the Client together.
3.1. The Client agrees that its contractual relations including any orders placed by him or her, is exclusively governed by these General Terms, except for certain exceptional cases as described in Points 4.3. and 19.2 below.
3.2. These General Terms may be modified by FEELIN at any time without prior notice. Nevertheless, the current contracts remain subject to the conditions as they were applicable at the time the sale was concluded. Before the confirmation of the order, the Client receives the terms and conditions in force to be read and accepted, in a format that can also be stored or printed.
4.1. Each Order implies the unconditional acceptance of these General Terms by the Client.
4.2. Following the acceptance of the General Terms, the Client can register to the FEELIN platform (creation of an account) and proceed with the order. The Order can be either a one-shot purchase (i.e. testing and analysis of one video ad) or a purchase of a package (enabling testing and analysis of more than one video ad) in form of credits. The targeted audience and the geographic area of testing are defined by the Client before the payment of the Order. Once paid by the Client, the order is considered as confirmed, subject to the verification of the content of the submitted video by FEELIN. In case of a purchase of a package, the remaining amount of credits appear and can be consulted on the Client’s account.
4.3. In certain exceptional cases, the Service agreement is concluded after an offer has been sent by FEELIN to the Client. The acceptance of such Offer sent by FEELIN shall only constitute a contract if the acceptance of the offer is confirmed by FEELIN (in this regard, an e-mail is considered as sufficient). Starting the execution of an order by FEELIN is considered as a confirmation unless it has been made subject to reservation. The Client is obliged to check the accuracy of the confirmation by FEELIN and in case of any errors, to immediately inform FEELIN in writing of such errors.
4.4. Any order may be refused in case of infringement to these General Terms, force majeure, suspicion of abuse of rights or bad faith on the part of the Client.
5. Fees and payment
5.1. The Client shall pay to FEELIN a fee for the Service. The Service is non-cancellable, and all fees are non-refundable. The Client has no right to claim back, withhold or reduce any amount from the fees owed due to any alleged defects in the Service.
5.2. When buying credits of the FEELIN platform, the payment of the Service is made directly via the FEELIN platform before the Order can be confirmed. As mentioned in Point 4.2., the Order can be either a one-shot purchase (i.e. testing and analysis of one video ad) or a purchase of a package (enabling testing and analysis of more than video ad). In case of a purchase of a package, the remaining amount of credits appear and can be consulted on the Client’s account.
5.3. In certain cases, as described in Point 4.3., the payment can be made by the Client by bank transfer, either monthly or annually. In such a case, FEELIN credits the Client’s account of the FEELIN platform with the corresponding amount of credits. More specific conditions of payment shall be included in the offer sent to the Client by FEELIN; the specific conditions shall be part of the entire Agreement, as described in Point 19.2.
6. Performance of the Services
6.1. The Client shall safeguard all user authentication credentials in its possession or under its control and is responsible for all activities that occur under its account, including without limitation unauthorised access. The Client shall notify FEELIN immediately if the Client believes an unauthorised third party may be using the Client’s account or if the Client’s account information is lost or stolen.
6.2. FEELIN may, in addition to such other remedies as FEELIN may have, suspend the Client’s right to access or use any part of the Service immediately without advance notice to the Client if FEELIN determines that the Client’s or its users’ use of the Service (i) do not comply with the terms and conditions; (ii) poses a security risk to the Service or any third party ; (iii) may adversely impact the Service, or the networks or data of FEELIN or of any other client or business partner of FEELIN; (iv) does not comply with applicable law; or (v) may subject FEELIN or any third party to liability. FEELIN may terminate the Agreement if the Client fails to rectify such use within thirty (30) days from notification by FEELIN.
6.3. All delays mentioned by FEELIN are given for information purposes and may be subject to adaptation. Moreover, FEELIN shall not be liable for any delay or failure to perform the Services if such delay or failure is due to causes beyond its reasonable control, such as, but not limited to, fire, flood, strikes, labour disputes or other industrial disturbances, (declared or undeclared) war, embargoes, blockades, legal restrictions, riots, insurrections, or governmental regulations.
7.1. Once confirmed, the Order is non-cancellable, and no remaining credits can be reimbursed.
7.2. If a video of the Client is not validated by Feelin as its content does not comply with the General Terms and thus removed, the corresponding credits are returned to the Client’s account of the FEELIN platform (no money refund).
8. Client’s responsibilities and obligations
8.1. The Client is solely responsible for the accuracy, quality and integrity of the video content and data that the Client enters into the Service or provides for input into the Service. The Client declares and ensures that it has collected and shall maintain and process all Client Data in compliance with all applicable privacy and data protection laws and regulations.
8.2. The Client shall own all rights, titles and interests in and to any copyrights, trademark rights, patent rights, database rights and other intellectual property or other rights related to the video content uploaded. In the case of a framework contract between an agency (the Client) and a brand, the latter must have assigned those rights to the agency (grant of rights).
8.3. The Client hereby grants to FEELIN a non-exclusive right to use any video content and more generally all information and data provided by the Client in connection with the Services and FEELIN shall be free to upload the video content on its application.
8.4. Except for the limited rights expressly granted herein, the Agreement does not transfer from the Client any proprietary right or interest regarding the video content. All rights regarding video content that are not expressly granted to FEELIN in the Agreement are reserved to the Client.
8.5. The Client agrees not to upload any content which is illegal, defamatory, obscene, incites prejudice or hatred or which it is otherwise unlawful to be possessed by the Client or used or held by FEELIN according to applicable law of the respective countries. The submitted videos are checked by FEELIN; if the video includes content which does not comply with these General Terms, the video in question will be removed and the corresponding credits are returned to the Client’s account. Following a warning, the account of a client who deliberately uploads non-permitted content several times consecutively may be closed by FEELIN.
8.6. The Client is solely responsible for determining the suitability of the Service for Client’s business and complying with any laws and regulations applicable to the Client Data and the Client’s use of the Service.
8.7. The Client recognises and accepts that the video content will be watched by many users. Therefore, despite all the technical measures taken by FEELIN to protect the rights related to it and the commitment made by the user, by accepting the applicable general terms and conditions to users, to not copy and/or reproduce by any means and in any form whatsoever the video content, the user may use devices in order to film or photograph the video content and disclose it on internet. The liability of Feelin does not extend to such situations; Feelin, however, assures that it takes all the technical measures needed, to the extent possible, to prevent such situations from occurring.
9. Limitation of damages
9.1. FEELIN is not responsible for any direct, indirect, special, incidental, consequential (such as loss of content, loss of use, loss of time, etc.), or punitive damages, including but not limited to, damages for personal injury, pain and suffering, emotional distress, loss of revenue, loss of profits, loss of business or anticipated savings, loss of use, loss of goodwill, and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable, caused by a product defect.
9.2. In case of detection of a defect in the product during the testing period, the Client should contact FEELIN.
9.3. In addition, Feelin is not responsible for any direct or indirect consequences the use of the Service might have on the Client’s reputation, loss of revenue, loss of profits, loss of business or anticipated savings, loss of use, loss of goodwill etc. (the list being not limited to those issues). Furthermore, Feelin is not responsible for any damage caused by the decisions and/ or changes to the video content the Client may take on the basis of analyses made by FEELIN.
10. Access to and use of User account
10.1. Access to and use of the FEELIN’ System is only allowed for a client dully registered in FEELIN’s platform.
10.2. The Client understands and agrees that the login and password must be kept secret and shall not be shared with any other person.
10.3. In case of fear or suspicion that the login and/or password is corrupted, the Client shall immediately inform FEELIN thereof by sending an email to firstname.lastname@example.org.
10.4. The Client must at all times comply with these General Terms, as well as applicable laws, rules and regulations when using FEELIN’ System. The Client shall not, for any reason whatsoever, directly or indirectly, make any use of the FEELIN’ System for or in connection to any illegal purpose or activity.
10.5. FEELIN reserves the right to deactivate or suspend the Client’s account and subsequently to refuse access to FEELIN’ System at any time in the event of technical issues, suspicion of improper or fraudulent use or for any other objective security reason.
10.6. As mentioned in Point 8.5., all submitted videos are checked by FEELIN and following a warning, the account of a client who deliberately uploads non-permitted content several times consecutively may be closed by FEELIN. In the event of a disagreement, a client can issue a complaint by sending an email to email@example.com and ask the reasons for the refusal of the video in question.
11.1. Each Party agrees not to use any Confidential information of the other Party except as expressly authorised.
11.2 Each Party agrees that it shall take reasonable measures to protect the secrecy of Confidential information of the other Party and avoid any disclosure and unauthorised use of information. Without limiting the foregoing, each Party shall take at least those measures that it takes to protect its own most highly confidential information but in no circumstances less than reasonable care. Neither Party shall disclose the other party’s Confidential information to any person or entity other than its subcontractors, officers, employees, consultants and legal advisors who need access to such Confidential information in order to effect the intent of the Services and who are informed of the obligation to keep such disclosure in confidence, and each party shall be responsible to ensure that its subcontractors, officers, employees, consultants and legal advisors comply with the restrictions set forth herein. Neither Party shall make any copies of the Confidential information of the other Party except as appropriate to perform its obligations pursuant to this Agreement.
12.1. The Client acknowledges and accepts that the use of secured devices is a basic requirement to use FEELIN’ System and that neither FEELIN nor its subcontractors can be held liable for any security risk caused by the Clients’ mobile phone, browser, operating system, internet connection, firewall, network, etc.
12.2. The Client shall take all reasonable measures to ensure that FEELIN’ System is used in accordance with the security rules on correct internet conduct and secured equipment and to the extent applicable, secured (WIFI) networks. As mentioned above, FEELIN reserves the right to deactivate or suspend any Client account, and subsequently to refuse access to FEELIN’ System at any time in the event of technical issues, suspicion of improper or fraudulent use or for any other objective security reason.
13. Intellectual Property
13.1. FEELIN is the owner and/or beneficiary of all intellectual property rights and know-how associated with FEELIN’ System, application and Services.
14. Changes to the Terms and Conditions
14.1. FEELIN may at any time change the General Terms.
14.2. The Client shall be informed of any amendment to the General Terms by e-mail or by other means to which the Clients have access. FEELIN reserves the right to change or modify content, materials or information appearing on or in connection with FEELIN’ System, or discontinue the services related to FEELIN’ System at any time with a reasonable notice.
15.1. FEELIN guarantees that in connection with the receipt, storage, use and/or transfer of personal information, it shall (a) always maintain the confidentiality of personal information provided or otherwise disclosed to FEELIN in connection with the Services, and (b) maintain appropriate security measures that are in compliance with applicable data protection regulations.
15.2. The videos uploaded by the Client and the results of their analyses are stored on the FEELIN platform for a period of time of two (2) year as of the date of uploading. By prior notice by the Client, the videos and the results of their analyses can be deleted before this expiry date. In this regard, the Client shall inform FEELIN in writing by sending an email to: firstname.lastname@example.org, and clearly indicate in the email which videos and analyses are concerned by the request.
16. Non-Solicitation of Personnel
16.1. The Client shall not solicit for employment, directly or indirectly, the officers, employees, subcontractors or agents (“Personnel”) of FEELIN who have performed duties in support of the Services during the term hereof and until eighteen (18) months after the earlier of: (a) the termination of such Personnel’s engagement; and (b) the termination of the contractual relation with FEELIN, unless explicitly agreed to in writing by the Parties. No offer or other form of solicitation of employment shall be made at any time when the employment of such Personnel is prohibited by these General Terms.
17. No waiver
17.1. FEELIN’s failure to enforce any provision of the General Terms or any additional terms shall not be deemed as a waiver of such provisions nor of its right to enforce such provision.
18. Independent Contractor
18.1. Nothing in these General Terms, and no course of dealing between the Parties, shall be construed to create an employment or agency relationship or a partnership between the Parties. Each Party shall be solely responsible for payment of its employees’ salaries (including withholding of income taxes and social security), workers’ compensation, and all other employment benefits.
19. Entire Agreement
19.1. These General Terms set forth the entire Agreement and understanding between the Parties with respect to the subject matter hereof and replaces any prior oral or written communications.
19.2. In certain exceptional cases as described in Point 4.3., the entire Agreement consists of the accepted and confirmed Offer, in addition to the General Terms, and of any possible annexes thereto. This entire Agreement shall not be supplemented, modified or amended except by a written instrument signed by duly authorised representatives of the Client and FEELIN, respectively.
20.1. In the event any term or provision of these General Terms is determined to be invalid, illegal or unenforceable, the remaining terms and provisions shall continue in full force and effect provided that the essential terms and conditions remain valid, binding and enforceable.
21. Applicable law and competent jurisdiction
21.1. These General Terms shall be governed by and construed in accordance with Belgian law. Any dispute arising out of or in connection with these General Terms shall be submitted to the exclusive jurisdiction of the courts of Brussels.