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PREAMBLEOTEGO is a French Company (société par actions simplifiée (simplified joint stock company)), registered within the Trade and Register Company (R.C.S) of Bourg-en-Bresse (France) under number 759 200 983, and located at Zone Industrielle les Chartinières – 01120 Dagneux (France) (hereafter referred to as "OTEGO" or the "Operator").
OTEGO publishes and operates the Marketplace accessible at the following address: www.oteplace.com (hereafter the "Platform" or "OTEPLACE").
OTEPLACE is OTEGO's collaborative platform that aims at developping a real vertical marketplace solution integrating both customers and partners or providers of OTEGO's value chain, in order to create a complete on-line eco-system for the sale of products protecting people, machines or infrastructure.
In this context, OTEGO acts as operator of the Platform, as a simple technical intermediary. Its role is limited to host the offers of the Sellers on the Platform and to put the Sellers in contact with the Buyers.
ANY SUBSCRIPTION TO THE PLATFORM AND ASSOCIATED SERVICES IMPLIES THE ACCEPTANCE BY THE SELLER OF THESE TERMS OF SERVICE.
- "Account" : means the account of the User on the Platform enabling access to all Services and different functionalities available on the Platform. The User can have access to its Account by using its Login Information.
- "Buyer": means the natural or legal person who buys Products from a Seller on the Platform, in the context of its professional activities.
- "Catalogue": means the list of Products available on the Platform. "Seller's Catalogue" means the specific list of Products sold by the Seller and available in its OTEPLACE Shop.
- "Confidential Information": means:
- protected information (held by the disclosing Party or a third party with which the disclosing Party has a non-disclosure obligation), particularly any information, know-how or software, including without limitation its source code and any translation, compilation, partial copy or derivative work;
- any information designated as confidential at the time of its disclosure to the receiving Party, or when it is orally communicated, identified as being confidential and expressed in written form or other material form (including electronically), which encompasses a notice of confidentiality clearly stipulated and transmitted to the addressee within a period of thirty (30) days following the disclosure;
- any information that should, in light of the circumstances of its disclosure, be treated in good faith as protected and confidential.
- "Content": means, without limitation, any document, file, data, information, trademarks, program or software, graphic works, pictures, photographs, videos, invention, etc. created by a Party or licensed to this Party by a third party, and used for its activity on the Platform, and/or published on the Platformy by this Party, including, for example, the contents used by a Seller for the publication of its Offers or by Buyers to illustrate their reviews.
- "Data Protection Laws": refers to any applicable law relating to the processing, privacy and use of personal data, as applicable to either party or the Services. Where applicable, it shall include:
- Regulation (EU) 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data;
- French Law No. 78-17 of 6 January 1978 on Information Technology, Files and Civil Liberties;
- any laws which implement, replace, extend, re-enact, consolidate or amend any of the foregoing; and
- all guidance, guidelines, codes of practice and codes of conduct issued by any relevant supervisory authority relating to such laws above-mentioned (in each case whether or not legally binding).
- "General Terms Of Service": means the contractual document, which provides for the general terms and conditions governing the provision of the Platform and the Services by the Operator to the Sellers.
- "Login Information": means the e-mail address and confidential password enabling access to the Account.
- "Offer": means any product presentation related to a Product, available on the Platform, containing all the necessary information which should be brought to the attention of the Buyer, by which the Seller offers its Products for sale.
- "Order": means the purchase of the Products made by a Buyer on the Platform.
- "OTEPLACE Shop": means the space allocated by the Operator to the Seller on the Platform enabling the Seller to present its company and its Products.
- "Party/ies": refers, indifferently or collectively, to the Operator and/or the User.
- "Payment Service Provider" or "the PSP": refers to MANGOPAY S.A., a payment service provider (https://www.mangopay.com/en_UK/legal-notice/) chosen by the Operator to manage all the payments made throughout the Platform (hereinafter the "Payment Services"). MANGOPAY is a company incorporated under the laws of Luxembourg, with a capital of 24,700,000 euros, whose registered office is located at 2 Avenue Amélie, L-1125 Luxembourg, registered within the Luxembourg Trade and Companies Register under number B173459 and approved as an issuer of Electronic Money in Luxembourg by the Commission de Surveillance du Secteur Financier under reference No. 3812.
- "Platform": means the platform published by the Operator, as well as all of its graphic, audio, visual, software and textual components. The Platform is the exclusive property of the Operator.
- "Product": means any product offered for sale by a Seller on the Platform as authorized by the General Terms of Services.
- "Seller": means any entity registered on the Platform in order to sell its Products. The Seller may be affiliated to the Operator group or a third party company.
- "Seller's Terms of Sales": means the terms and conditions uploaded by the Seller, providing for the conditions ruling the sale of its Products through the Platform.
- "Service": means any service offered by the Operator via the Platform to the different categories of Users. The Services to which the Seller subscribed are detailed in the General Terms of Services.
All Users have access to:
- "Marketplace Services": means the professional intermediary service provided by the Operator, including the provision of the Platform, with all its functionalities (referencing the Products, creation and management of an Account, access to the Seller's Catalogue, Payment Services provided by the Payment Services Provider, etc.), as the means of intermediation between the Seller and the Buyer.
- "Solution": means the software powering the Platform, enabling the dissemination, organization, manipulation, aggregation, importation, selling, displaying etc. of Products via the Platform.
- "Territory": means the geographical and/or political territories (states, regions) covered by the Platform (meaning the territories in which the Services are available, including the Payment Services). The Services are not available in the territories where "pay-out creation" by the PSP is marked as blocked at the following link.
- "User": means any person who visits the Platform, no matter whether it is a Seller or a Buyer.
- "Working Days": means every day from 9 :00 am to 6 :00 pm (Seller/the Operator Timezone), except Saturdays, Sundays, and holidays in France / Territory in which the Seller or the Operator is located.
4. TECHNICAL SPECIFICATIONS
By using the Platform, the User acknowledges having the necessary means and skills to use the functionalities offered on the Platform.
The equipment required to access and use the Platform is at the User's expense, as are any telecommunications costs that may be incurred by their use.
5. ROLE OF THE OPERATOR
5.1. The Operator as a mere intermediary
The Platform consists in connecting Sellers and Buyers, by electronic means, for the sale of Products.
The Operator does not exercise any control over the execution of the sales of Products and does not intervene in the final transaction between the Buyer and the Seller.
The sale contract, governed by the Seller’s Terms of Sales, is therefore entered exclusively and directly into by and between the Buter and the Seller, with the Operator only acting as a mere intermediary between then.
The prices and description of Products are exclusively established by the Sellers.
The Services provided by the Operator are paid through:
- Fees on each transaction;
- Fees for specific Services subscribed by the Sellers.
The Users expressly accept that even if the Operator may have contractual relationships or capital links with some Sellers, such relationship shall have no influence on the Products ranking. However, some Sellers may subscribed to Marketing Services which enable them to benefit from a better visibility on the Platform.
5.2. Financial Transparency
In accordance with Section 242 bis and 171 AX of the French Tax Code, for Users having their residence in France or which carry out transactions located in France, the Operator will:
- Deliver to the Sellers in January of each year a summary statement of all transactions and turnover made through the Platform;
- Provide all Sellers with the most accurate information possible on their civil and fiscal obligations in the context of the sale of their Products via the Platform (see Appendix 1 (Information on civil and fiscal obligations) of the General Terms of Services);
- Where applicable, communicate to the French tax authorities the information legally required by them.
More information regarding these financial transparency obligations can be found by the Sellers in the General Terms of Services.
6. BUYERS REVIEWS – RATING OF SELLERS
Buyers may leave a review, as well as a rating, going from on (1) to five (5) stars for overall satisfaction (five (5) being the best score), and a picture within one hundred (100) days following the estimated delivery date of their Products.
All reviews will be moderated before being published on the Platform.
If the Seller has not provided for an estimated date, the period allowing reviews starts after the processing time and delivery time of the Order. Buyers may modify their review, including pictures, as many times as they want, during this period. Buyers can also delete their reviews at any time.
When a Seller receives a negative review (less than three (3) stars or a negative comment), the Seller can reply to such review.
Reviews and replies are subject to the rules regarding communication between the Parties and shall not contain:
- Private information;
- Graphic, explicit, or obscene speech and pictures;
- Hate, offensive speech or pictures;
- Advertisement or promotional content of any kind;
- Comments or information independent from the Seller’s control, such as shipping company, the Platform or any third party;
- False or dishonest information about the Product and/or a competitor’s product, including information provided in order to falsely pump up the reviews for a specific Seller or published as part of a collusion with another User;
- Blackmail, harassment or bribery attempt.
Any User can report non-compliant reviews to the Operator following the procedure set out in 11.2 “Hosting Provider”.
7. ACCESS AND REGISTRATION CONDITIONS
Any User may access the Platform and consult the Products but in order to see the prices; consult information regarding the Seller or to be connected with other Users for the sale of Products, the User shall be a registered member.
The User wishing to become a Buyer and/or a Seller is invited to follow the steps as described below:
Registration on the Platform as a Seller may be subject to charges as set out in the specific conditions of the General Terms of Services. Buyers can access the Platform for free.
In any case, registration and access fees for the Platform are made available before registration can be validated and expressly accepted by the User.
Registration on the Platfom is subject to the Operator’s express acceptance of the User, based on its compliance with the selection criteria and documents provided.
In order to be registered as a Buyer, an User should request to create its Account through the Platform’s home page by completing the registration form.
To be accepted as a registered Buyer, the User must:
- Be a registered company in the Territory;
Users shall provide all documentation necessary to demonstrate the above mentionned criterias, including (i) registration and administrative documents; (ii) internal procedures when necessary or (iii) any certification statement to a specific standard corresponding to such criterias (for Sellers).
It is agreed between the Parties that any document transmitted by the User to demonstrate its compliance with the above should be considered as Confidential Information.
In any case, the User must ensure continuous information accuracy of its information and notify the Operator when an update is necessary.
When information relating to the User’s registration is not up-to-date, complete and/or accurate, the Operator reserves the right to temporarily suspend the User’s access to the Platform and/or the provision of its Services at the Operator’s sole discretion, subject to a fifteen (15) Working Days prior notice in order to enable the User to comply with its obligation.
7.2. Login Information
The User undertakes to take all reasonable steps to prevent any unauthorized access to or use of the Platform, the related Solution and Services and, in the event of such unauthorized access or use, to notify the Operator thereof as quickly as possible.
The User shall be solely responsible for the use of its Login Information or any action made through its Account.
In the event that a User discloses or uses its Login Information contrary to their purpose, the Account might then be deleted or suspended by the Operator.
Under no circumstances can the Operator be held liable in the event of an User’s identity theft. Any access and action carried out from the Account will be presumed to be carried out by this User, insofar as the Operator has no obligation and does not have the technical means to ensure the identity of the persons having access to the Platform from an Account.
Any loss, misappropriation or unauthorized use of a User’s Login Information and their consequences are the sole responsibility of the User, the latter being obliged to inform the Operator of such situation, without delay, by email, at the following adress: firstname.lastname@example.org.
The Services offered to the Buyers include access to the Platform and its different functionnalities, including (i) searching Products to buy and (ii) management of Orders.
8.1. Searching Products
Users can browse the Platform in order to found Products to buy, through different categories or when visiting the Sellers’ OTEPLACE Shop.
Users may search for specific Products or Sellers on the Platform based on key-words or categories of Products as defined on the Platform. Users can also use specific filters available on the Platform to refine their research (for example, according to prices; Seller’s identity; etc.).
Users are informed that, in some cases, Sellers may be or will be able to benefit from specific assistance or paying marketing services from the Operator in order to have their Products put forward on the home-page or appear in the first answers to searches. Such Products and/or Sellers will be identified as such on the Platform.
8.2. Management of Orders
Buyers can order Products through the Platform by adding them to their cart and then follow-up on their Orders from their Account (pending acceptance by the Seller; accepted; etc.).
Buyers will also have access to their past Orders made through the Platform.
8.3. Communication Services
An internal messaging services (“OTEPLACE Message”) is available to the Buyers from their Account. This Service enables them to send messages to:
- The Operator.
This Service expressly enables Buyers to contact Sellers to ask specific questions as to their Products or on-going Orders.
Use of this Service is expressly subject to the respect of Article 10.2 “Obligations of the Buyer” and especially to obligations of good conduct towards the other Users.
9. ORDERING PRODUCTION
9.1. Order Process
The Buyer orders Products by selecting them on the Platform or the Seller’s OTEPLACE Shop, adding them to its cart and validating its Orders after checking that it effectively corresponds to its needs.
The Seller will receive a notification by email and on the Platform each time a Buyer orders one of its Product through the Platform.
The Seller shall inform the Buyer of its acceptance of the Order within a short delay and no longer than twenty-four (24) hours (on Working Days) after receipt.
The Buyer acknowledges and agrees that the Operator shall not be liable in case of damage or loss arising from the Seller’s failure to take into account any notification.
The Product sale contract is entered between the Seller and the Buyer subject to the availability of the Product and acceptance of the Order by the Seller.
In case of non availability of one or several Products ordered, the Seller will inform the Buyer within twenty-four (24) hours and decline the Order.
9.2. Price - Payment
Prices are determined by the Sellers. They include the commission fees charged by the Operator to the Sellers, as provided under the General Terms of Services.
The Buyer may use the following payment methods to pay for its Order:
- Bank transfer, including (when available) delayed payment by bank transfer;
- Credit card.
The Buyer is informed that delayed payment is subject to availability and specific authorisation from the relevant Seller and acceptance of specific and separate delayed payment terms by the Buyer.
Such specific conditions may include the evaluation of the Buyer’s solvability, and requesting further information, especially of financial nature, to do so. Moreover, Users are expressly informed that delayed payment services may be provided by third-party payment services providers.
In any case, the Buyer expressly recognizes that the Seller is sole responsible to accept or refuse such payment terms and that under no circumstance, the Buyer can held the Operator liable for any Seller’s, or even third-party’s, decision regarding the performance of such payment modality.
9.3. Delivery - Risks transfers
The Seller informs Buyers about delivery charges, if applicable, and includes such charges in its selling price when the Buyer completes its Order.
The Seller shall inform Buyers about estimate delays for shipping and expected delivery date.
Terms and delays of delivery are determined by the Sellers in their Seller’s Terms of Sale or in their Offers.
Sellers can refuse Orders coming from certain Territories where they are not able to deliver Products or when their stock of Products is not sufficient to deliver the Products in reasonable times.
Delivery of Products is under the Seller’ sole responsibility. The Operator, as a mere intermediary, does not take any responsibility in the shipping of the Product.
Except otherwise provided in the Seller’s Terms of Sale or any other agreement between the Seller and the Buyer, the risk of theft, loss, damages, or destruction is transferred to the Buyer when the Product is actually handed over to the Buyer itself or a third party designated by the Buyer, other than the carrier chosen by the Seller.
The Buyer is informed that, in accordance with the principle of extended producer responsibility which may apply to certain categories of Products, the Seller may be subject to a legal obligation to take back used products of the same nature as the Products ordered by the Buyer ("one-for-one take-back").
Terms applicable to such take back shall be set out by the Seller’s Terms of Sale, or explicitely mentionned on the relevant Offer.
Buyers can cancel their Orders as long as they have not been confirmed by the Seller.
Once an Order has been confirmed by the Seller, neither the Seller nor the Buyer are authorized to cancel the Order, except otherwise provided in the Seller’s Terms of Sale or the Offer.
9.5. Withdrawal – Returns
As a professionnals, under French Law, Buyers are not entitled to a legal right of withdrawal.
If the Seller accepts returns of Products, terms and conditions of such returns shall therefore exclusively provided by the Seller’s Terms of Sale.
The Buyer shall not return the Product to the Operator, any return shall be made to the Seller, at the address and according to the methods indicated by the Seller.
9.6. Disputes between Sellers and Buyers
The Operator is a simple intermediary between the Buyer and the Seller. Therefore, it can not be held responsible for the Products sale and delivery. As such, any sale of Products on the Platform shall be governed by the Seller’s Terms of Sales.
Therefore, in any event affecting the relationship between the Buyer and the Seller, both are encouraged to find an agreement and to make their best efforts to resolve amicably any dispute.
In case no solution is found, Buyers may open a dispute case on the Platform for non-delivery (Product non received) or non-conformity (Product non-compliant with the Order or damaged). In this case, the Operator shall be expressly mandated by the Buyer to act on his behalf to find a solution to their litigation.
The Seller shall answer to any dispute case within three (3) days, or within any other delay indicated by the Operator in the dispute case. The Operator will require cooperation from the Seller and the Buyer to resolve the dispute case.
The Operator might close a dispute case before the time limit for reasons such as (i) inactivity of the concerned Seller; (ii) harassment ; (iii) denial of service ; (iv) manipulation of the dispute ; (v) damage to the integrity of the Solution or (vi) any other threat for the Services or unlawful act of either of the Buyer or the Seller.
The Operator closes the case when:
- An agreement has been found with the help of the Operator; or
- No agreement has been reached and the Buyer and/or the Seller will have to resolve their dispute in other ways.
Following instructions of the Seller, the Operator may assist the Seller to enable refund of the Buyer.
10. OBLIGATIONS OF THE PARTIES
10.1. Obligations of the Operator
The general obligation of the Operator is only a best-effort obligation. The Operator has not to comply with any obligation to achieve a result or reinforced best efforts of any kind.
The Operator implements all means to ensure continuity of access and disponibility of the Platform seven (7) days a week and twenty-four (24) jours a day.
However, Users shall be aware that the current communication protocols through the Internet do not guarantee the transmission of electronic exchanges (messages, documents, identity of the sender or recipient, etc.) in a certain and continuous manner.
The Operator will provide clear, transparent and fair information on the terms of its intervention and will do its best to assist the Buyers in dispute resolution with Sellers as provided in Article 9.5 “Dispute Resolution between Sellers and Buyers”.
10.2. Obligations of the Buyer
Each User shall:
- Respect the right of third parties, including their intellectual property rights (other Users’ Content, etc.);
- Use the Platform and all Services only for licit purposes;
- Behave in a loyal and due diligence manner towards the Operator and third parties (including other Users);
- Be honest and sincere in the information provided to the Operator and, where applicable, to third parties (including other Users, and especially Sellers for the provision and delivery of the Products);
- Not divert the purpose of the Platform to commit crimes, offences or misdemeanors punishable by the French Criminal Code or any other law;
- Respect the privacy of third parties and the confidentiality of exchanges;
- Respect the intellectual property rights of the Operator concerning the elements of the Platform and if necessary, the intellectual property rights of other Users;
- Not seek to infringe or attack within the meaning of Sections 323-1 et seq. of the French Criminal Code the automated data processing systems implemented on the Platform;
- Not modify the information put online by the Operator or by another User;
- Not use the Platform to send massively unsolicited messages (advertising or other);
- Not disseminate data that would diminish, disorganize, slow down or interrupt the normal operation of the Platform;
- Not buy a Product only to give a negative review.
For all discussions with other Users or the Operator whatever the means used from communication (messages on the Platform, phone calls, e-mails or any external means), the User must respect communication rules as described below and comply with the legal and regulatory provisions in force and in particular with French Act of 29 July 1881 relating to freedom of the press, French Law for Confidence in the Digital Economy of 21 June 2004 or Data Protection Laws.
Therefore, Users shall not:
- Send unrequired advertisement, promotions, spams or any message of commercial nature (prospection, solicitation, etc.);
- Ask for donations;
- Harass other Users or the Operator or having an abusive behavior against them;
- Contact another User after that User had explicitly required to not be contacted by the User again;
- Exchange personal, financial or any other information in order to bypass the Platform’s payment process;
Interfere with another User’s transaction or activity including to:
- contact another User via the Platform in order to warn him about a Seller or Buyer, an OTEPLACE Shop, or a particular Product;
- publish comments in public areas (especially reviews, etc.) in order to protest and/or discuss about a dispute with another User;
- buy a Product only to give a negative review;
- false reviews and/or comment on reviews posted on other OTEPLACE Shops.
Propagate or communicate any message or information:
- Constitutive of wrongful denigration targeting the Operator or the Users of the Platform;
- Contrary to public order and morality;
- Of an offensive, defamatory, racist, xenophobic, revisionist nature or damaging to the honor or reputation of others;
- Inciting discrimination, hatred of a person or group of persons on account of their origin or their membership or non-membership to a particular ethnic group, nation, race or religion;
- Threatening a person or group of persons;
- Of a pedophile nature;
- Inciting to commit an offence, a crime or an act of terrorism or publicly endorsing war crimes or crimes against humanity;
- Inciting to suicide;
- Allowing third parties to obtain directly or indirectly pirated software, software serial numbers, software enabling acts of piracy and intrusion into computer and telecommunications systems, viruses and other logic bombs and in general any software or other tool enabling the infringement of the rights of others and the security of persons and property.
It is agreed between the Parties that any failure by the User to comply with such obligations shall entitle the Operator to temporarily suspend or terminate its access to the Platform.
If the Operator receives complaints and/or claims and/or notifications directly addressed by Sellers, other Users or internet users, administrative or judicial authority as a result of the use of the Services and the Platform by the Buyer, it is expressly agreed between the Parties than the Buyer shall compensate the Operator for all costs of internal and external processing of such complaints, claims and/or notifications.
11.1 General Principles
The Buyer can establish the liability of the Operator as long as it has previously given notice of the alleged breach by registered letter and the Operator failed to remedy this breach within a period of ninety (90) days from the receipt of such notification. At all events, it is noted that establishing the liability of the Operator cannot be sought except in cases of proven error.
Without restricting the generality of the foregoing and in particular the limitation of liability stated herein above, the Operator shall, to the maximum extent permitted by law, not be liable in particular for:
- Temporary inability to access the Platform for technical maintenance operations, or to update published content or information. All Users acknowledge that the Operator cannot be held liable in the event of poor or deteriorated performance, malfunctions, or interruptions caused by the internet network independent of the Operator's will;
- Any loss or damage being caused by virus attacks, malicious code or any illicit intrusion into an automated data processing system;
- In case of abnormal use or illicit exploitation of the Platform by a User or a third party;
- In relation to the content of third-party websites to which hypertext links are provided on the Platform, especially if such links are provided by other Users;
- In case of "force majeure" as defined by Article 1218 of the French Civil Code and applicable case law;
- Issues arising from the conduct of a Seller or problems encountered during the execution of an Order, including disputes between Sellers and Buyers;
- External cause not attributable to the Operator.
In the event of abnormal use or illicit exploitation of the Platform, the User is solely liable with respect to any damage caused to third parties and for the consequences of any claims or actions that may result therefrom.
11.2 Hosting Provider
Users acknowledge that the Operator has the status of hosting provider within the meaning of Section 6 I 2° of French Act of 21 June 2004 on Confidence in the digital economy known as "Loi pour la confiance dans l'économie numérique (LCEN)".
In this respect, the Operator may withdraw any content that it has been informed of and that it considers to be manifestly illicit within the meaning of Section 6 I 2° of the LCEN.
Notification of manifestly illicit content by a User or any other third party shall be made by e-mail to the following address: email@example.com or by registered mail with acknowledgement of receipt to: Zone Industrielle les Chartinières – 01120 Dagneux.
In accordance with Section 6 I 5° of the LCEN, the notification must include the following elements in order to be valid:
- The notification date;
- If the notifying party is a natural person: its last name, first name(s), profession, domicile, nationality, date, and place of birth; if the notifying party is an entity: its form, name, registered office and the body which legally represents it;
- The name and domicile of the recipient or, if the recipient is a legal entity, its name and registered office;
- The reasons why the content should be removed, included the legal provisions and justification of the facts;
- A copy of the exchanges with the author or the publisher of the disputed information or activities requesting their interruption, withdrawal, or modification or the justification of why the author or publisher could not be contacted.
11.3. Seller's liability
The Seller is solely liable for the Products it offers for sale on the Platform, including as to the information relating to these Products, the processing of Orders and deliveries, the conformity of the Products, the compliance of the Products to the uses for which the Buyer intended them, the after-sales service (including any legal or commercial warranty of the Products), and ownership of intellectual property rights on its Contents and the Products.
The Seller undertakes to respect all the regulations applicable to the Products, in a general way and specifically within the framework of a distance selling, and especially any environmental or security regulation applicable to the Products.
Therefore, the Operator declines all liability in this respect.
Except for public order provisions to the contrary, the Seller will not be responsible for the occurrence of any damage of any nature whatsoever resulting directly or indirectly from the use or non-compliant use of the Products.
The Seller shall not be liable for any loss or destruction of any property, damage, or expense arising directly or indirectly from the Buyer's use, misuse, or inability to use the Product, either independently or in combination with another Product.
Furthermore, the Seller shall not be held liable in the event of the Buyer's failure to perform or improperly perform its contractual obligations, in particular when completing its Order.
The Seller shall not be held liable, or be deemed to have failed, for any delay or non-performance, where the cause of the delay or non-performance is linked to a case of force majeure as defined in the "Force Majeure" article below.
Each Party represents and warrants to the other Party:
- That it will execute its obligations pursuant to all applicable laws in force while demonstrating diligence and reasonable competency;
- That it will not do or fail to prevent anything that would lead the other Party into a violation of any law or regulation in force; and
- That in no event it will not defame or disparage the other Party.
The Operator guarantees that the Platform shall generally function as described, but cannot guarantee that the Services are free of errors or non-conformities as provided in Article 10.1 "Obligations of the Operator".
Products warranties are determined by the Seller's Terms of Sale and/or applicable laws. Buyers are expressly informed that the Sellers are sole responsible for the conformity of the Products and that they can not require any warranty from the Operator as to the Products bought to the Platform. All requests should be addressed to the Sellers.
13. FORCE MAJEURE
There is force majeure in contractual matters when an event beyond the debtor's control, which could not be reasonably foreseen at the time of the conclusion of the agreement and whose effects cannot be avoided by appropriate measures, prevents the performance of its obligation by the debtor.
If the impediment is temporary, performance of the obligation must be suspended unless the resulting delay justifies termination of the agreement. If the impediment is permanent, the agreement is automatically terminated and the parties are discharged from their obligations under the conditions provided for in Sections 1351 and 1351-1 of the French Civil Code.
In such a situation, the User cannot claim payment of any indemnity and cannot bring any action against the Operator or the Seller.
In the event of the occurrence of one of the aforementioned events, the Operator will endeavor to inform the User as soon as possible.
14. INTELLECTUAL PROPERTY
14.1. Users' Contents
In the context of the Platform, all Users may present photographs, trademarks, logos, designs and other textes or models belonging to them or third party, especially Sellers when presenting Products but also Buyers when posting a review after an Order.
Any User accessing the Platform shall respect rights of other Users, including intellectual property rights, on all Contents published on the Platform.
In any case, except in cases it acts as a Seller, the Operator cannot be held liable for an act of infringement, given its simple capacity as host of the Content published by the Sellers.
Any representation or reproduction of content published by other Users, in any manner, without prior authorization, is forbidden and may constitute a punishable infringement.
14.2. Intellectual Property Rights of the Operator
The User acknowledges the intellectual property rights of the Operator on the Platform, its components and related content and waives the right to contest these rights in any form whatsoever.
Trademarks, logos, slogans, graphics, photographs, animations, videos, software solutions and texts and any other content on the Platform, with the exception of content published by Users, are the exclusive intellectual property of the Operator and may not be reproduced, used or represented without express authorization; otherwise actions may be brought against it.
Any representation or reproduction, in whole or in part, of the Platform and its content, by any process whatsoever, without the prior express authorization of the Operator, is prohibited and will constitute an infringement punishable by Sections L.335-2 et seq. and Sections L.713-1 et seq. of the French Intellectual Property Code.
In particular, the Operator expressly prohibits:
- The extraction, by permanent or temporary transfer of all or a qualitatively or quantitatively substantial part of the contents of its database to another medium, by any means and in any form whatsoever;
- Re-use, by making available to the public all or a qualitatively or quantitatively substantial part or all of the content of the database in any form whatsoever;
- The reproduction, extraction or reuse, by any means, including methods similar to scrapping the content (photographs, description, etc.) published by the Operator.
Any other use of the Platform and its content is excluded from the scope of this license and shall not be made without the prior express authorization of the Operator.
15. PERSONAL DATA PROTECTION
15.1. Data Processing by the Operator
As part of the operation of the Platform, the Operator is likely to collect personal data.
Therefore, when processing such data, the Operator undertakes to respect applicable Data Protection Laws.
In the context of accessing and using the Platform, including creation and management of its Account by the User, the User acknowledges that its personal data will be processed by the Operator in order to enable it to benefit from the Services, including for ordering Products and manage its Orders, communicate with other Users and, if the User has not object to, send newsletters and other commercial communication.
15.2. Data Processing by the Seller
Buyers are expressly informed that their personal data may be collected and processed by the Sellers receiving their Orders in order to process their Orders, other requests, or answers their questions as asked through the OTEPLACE Message.
The Seller will process such data as data controller.
The Seller shall process all personal data in respect of applicable Data Protection Laws and for the sole purpose of processing Orders, delivering Products, answering to claims or questions and complying with its legal obligations.
For instance, the Seller might keep a copy of all documents relating to the sale and delivery of Products, such as invoices or bills, for the necessary duration as required by law, in order to comply with its legal obligation, especially for tax reasons.
Data might be communicated by the Seller to its service providers as they intervene in the Order process, only for processing the Order or delivering the Products. The Seller makes sure that all its subcontractors are compliant with rules applicable to data processing and Data Protection Laws.
16. BUYER SERVICES
All requests or complaints regarding the use or operation of the Platform shall be made:
- By e-mail to: firstname.lastname@example.org
- By mail to: OTEGO, Zone Industrielle les Chartinières – 01120 Dagneux (France).
All requests or complaints about Products (damaged or non-delivered Product, etc.) shall be addressed to the Seller, which is sole responsible for executing the sale contract and the delivery of Products as ordered on the Platform.
17. DURATION – TERMINATION
A Buyer can unsubscribe from the Platform and close its Account at any time, unless an Order is ongoing, through parameters of its Account when available or by e-mail to email@example.com.
The Operator will deactivate the Account as soon as possible once all Orders have been delivered or considered terminated and will send the User an email confirming the closure of its Account and the definitive deletion of all its elements on the Platform.
They may be modified and updated by the Operator, at any time, in particular to adapt to legislative or regulatory changes.
19. GENERAL PROVISIONS
In case of difficulty of interpretation between any of the headings at the beginning of the provisions and any of the provisions, the headings will be declared non-existent.
20. JURISDICTION – APPLICABLE LAW