Terms and conditions of Service and Sales (ToS)
The purpose of these terms and conditions of Service and Sales is to define the conditions for the provision and use of Plantfarm’s services.
They form all the documents to which they refer, a contract (hereinafter the “Contract”) concluded between NOKENA SARL, a company incorporated under French law, administratively domiciled at BP 1, 88 rue d’Eaubonne, 95100 ARGENTEUIL, FRANCE, SIREN 907.820.229 (hereinafter referred to as “Nokena-Plantfarm”), and any natural or legal person, consumer or professional, governed by private or public law, creating a user account on the Plantfarm website (hereinafter referred to as the “User “). The User and Nokena-Plantfarm being individually or jointly referred to as the “Party(ies)”.
ARTICLE 1 : ORDERING PLOTS
1.1 User Account
To be able to order plots on Plantfarm, the User must have a valid user account (hereinafter the “Account” or “User Account”).
The User creates his User Account online on the Plantfarm Website. The User provides all the required information (including email address, identity, contact details, telephone number, etc.) and undertakes that all the information thus provided will be accurate and updated throughout the duration of the Contract. When the User Account is created and used by a person acting in the name and on behalf of the User, he declares and guarantees to Nokena-Plantfarm that he has the power and the capacity necessary to represent and engage the User under the conditions provided for in the Contract.
1.2 Verification and activation of the User Account
Before the activation of the User Account and at any time during the Contract, Nokena-Plantfarm reserves the right to check the accuracy of the information communicated by or on behalf of the User, and to ask the User for supporting documents.
Nokena-Plantfarm reserves the right not to activate or deactivate the User Account in the event of incomplete, erroneous or fraudulent information.
1.3 Orders
From the activation of his User Account by Nokena-Plantfarm, the User can order plants or plots. Depending on the plots, Orders can be placed directly from the User Management Interface and/or from the website.
The User is solely responsible for the management of his User Account and the means of authentication (such as usernames, passwords, etc.) associated with it. Any Order for plants or plots made from the User Account is deemed to have been placed by the User and is binding on the latter.
The conditions and deadlines for making the Services available vary depending on the ordered Plants. The Plants are made available only after receipt by Nokena-Plantfarm of payment from the User. It is up to the User to ensure that the conditions for the provision of the ordered Plants meet their needs.
ARTICLE 2 : SERVICES
2.1 Applicable Terms of Service
The provision and use of the Services are governed by these terms and conditions of Service/Use, the Special Conditions of Service applicable to the concerned Plants, all other conditions to which said Terms and Conditions and Special Conditions refer, such as in particular Third parties Product Conditions, as well as all the information brought to the attention of the User during the Order (the “Terms of Service”).
The use of Third Party Products (such as software, systems, applications, etc.) made available by Nokena-Plantfarm as part of the Services, may be subject to specific terms of use (the “Third Party Product Terms”).
The Special Conditions of Service and the Third Party Product Conditions supplement these Terms and conditions of Service/Use. In the event of contradiction, the Special Terms of Service as well as these Terms and Conditions prevail over the Third Party Product Conditions. All the Termss of Service/Use in force are referenced and can be consulted from the Plantfarm Website or available on request from Plantfarm Support. The Terms of Service/Use may vary depending on the country in which the Services are located.
2.2 Information relating to the Plants
Nokena-Plantfarm makes online resources available to the User on the Plantfarm Website allowing the User to become aware of and understand the characteristics of the offered Services. These resources may in particular include (a) information concerning the various functionalities, configurations, options and ranges available and (b) documentation, technical guides or examples (“use cases”) of use of the Plants allowing a better understanding and use of the Services. The User can obtain additional information concerning the plants or plots by contacting Plantfarm Support under the conditions set out in the article “Plantfarm Support” below.
When Nokena-Plantfarm offers Services that comply with recognized standards or with specific regulations applicable to certain activities, Nokena-Plantfarm communicates its scope of responsibility as well as the conditions under which Nokena-Plantfarm complies with said standards or regulations.
2.3 Nokena-Plantfarm’s commitments and obligations
Nokena-Plantfarm undertakes to provide all the care and diligence necessary for the provision of quality Services, in accordance with the characteristics, terms and levels of Services provided for in the Contract. Nokena-Plantfarm undertakes in particular to have, as far as possible, a competent team in charge of the assistance of the User and the management of Incidents (the “Plantfarm Support”), and to ensure the availability and security of Services according to the applicable terms and performance levels. Nokena-Plantfarm is subject to an obligation of means.
2.4 Subcontracting
Subject to the conditions provided for in the “Location and Data Transfers” article below, Nokena-Plantfarm is authorized to subcontract all or part of the services charged to it under this Contract to its Affiliates. Nokena-Plantfarm may freely have recourse, in the context of the execution of this Contract, to third parties (such as energy suppliers, network suppliers, managers of network connection points or colocation data centers, suppliers of hardware, software or others, carriers, technical service providers, guarding), without having to inform the User or seek his prior consent. However, unless otherwise provided in the Special Conditions in force or specific agreement from the User, no service involving access to the Content stored by the User as part of the Services is subcontracted outside Nokena-Plantfarm. Nokena-Plantfarm remains in any event responsible for the subcontractors it involves in the performance of the Contract.
ARTICLE 3 : CONDITIONS OF USE OF THE SERVICES
3.1 Compliance with the Terms of Service
The User agrees to order and use the Services in accordance with the Terms of Service/Use in force. The Services must be used with good understanding. The User undertakes in particular to read and comply with these Terms and Conditions of Service/Use, the Special Conditions of Service and the applicable Third Party Product Conditions, as well as all information communicated to the User at the time of the Order. When using the Services on behalf of third parties, or authorizing third parties to use the Services, the User undertakes to communicate to them the conditions in force and guarantees that said conditions are respected.
3.2 Choice of Plots
Before ordering Plots, the User undertakes to be aware of all the Terms of Service/Use in force (in particular the Special Conditions and Third Party Product Conditions) and to study all the documentation, configurations, options and ranges of services available in order to select Plants and features suited to its needs and those of third parties by or on behalf of which the Services are used.
The User notably ensures that the Services are adapted to the legal and regulatory requirements applicable to the activities carried out within the framework of the use of the Services. To obtain information concerning the Plants, the User can contact Plantfarm Support under the conditions provided for in the article “Plantfarm Support” below. The conditions and characteristics of the Plants change regularly. It is up to the User to pay attention to these changes, particularly in the context of each new Order.
3.3 Connection
To use the Services, the User must have, at their expense and under their responsibility, a remote connection (such as the Internet or private network). The User is informed that the Internet network presents technical hazards and security risks external to the technical means implemented by Nokena-Plantfarm as part of the Services. Nokena-Plantfarm is not responsible for the failures of Internet service providers or other operators of third-party data transport networks (in particular unreliability of connection lines, fluctuation in bandwidth, interruptions, etc.), including the consequences of such failures, in particular when they lead to unavailability and / or discontinuity of the Services.
3.4 Means of authentication
The User is responsible for the management and confidentiality of his means of authentication, necessary to connect and use the Services. The User notably ensures that Users are aware of and comply with the rules allowing the confidentiality of their means of authentication to be preserved. The User alone bears the consequences that may result from the loss, disclosure, or fraudulent or unlawful use of the means of authentication provided to Users, the responsibility of Nokena-Plantfarm cannot under any circumstances be engaged in this respect. The User undertakes to inform Nokena-Plantfarm without delay of any loss or possible disclosure of the means of authentication, and to proceed immediately to the renewal of said means of authentication.
3.5 Contents
Subject to the elements made available by Nokena-Plantfarm, Nokena-Plantfarm does not intervene in the management of information, data, files, systems, applications, websites and other elements reproduced, hosted, collected, stored, transmitted, disseminated, published, and more generally used and / or exploited by the User as part of the Services (the “Content”) and refrains from accessing said Content for purposes other than for the performance of the Services. In particular, Nokena-Plantfarm does not carry out any checking, validation or updating of said Content. Likewise, Nokena-Plantfarm does not perform any specific backup of the Content stored as part of the Services. It is therefore up to the User to take all necessary measures to safeguard his Content in order to protect himself against the risk of loss or deterioration, whatever the cause. The Content must be lawful and be used in accordance with the rules and laws and regulations in force. Any use of illicit Content (for example dissemination, publication, storage or transmission of Content of a child pornography, Content condoning or inciting the commission of crimes against humanity, acts of terrorism, pedophilia, anti-Semitism, racism or others, or even Content inciting hatred towards people because of their sex, religion, sexual orientation or gender identity or disability) or illegal or abusive use of Content (for example fraudulent use of content or use of Content made in violation of rights belonging to third parties such as personality rights, copyrights, patents or trademarks or other intellectual property rights) within the framework of the Services is prohibited and may give rise, at Nokena-Plantfarm’s discretion, to the immediate suspension of all or part of the Services provided in execution of the Contract, to the deactivation of the User’s Account and/or the termination of the Contract at the expense of the User, without prejudice to the legal proceedings and claims that Nokena-Plantfarm reserves the right to make.
3.6 Compliance with laws, regulations and ethical rules
The Services must be used in a reasonable manner, and in compliance with the legal and regulatory provisions in force.
In particular, without this list being exhaustive, are prohibited (a) abusive or fraudulent use of the Services and resources made available to the User, in particular uses likely to endanger the stability and security of Plantfarm or which may lead to a degradation in the performance of the Services provided to other Plantfarm Users, (b) intrusion or attempted intrusion activities from the Services (but not limited to : port scans, sniffing , spoofing, and more generally outgoing attacks from the resources made available by Plantfarm), (c) any use or attempt to use SPAM or any other technique comparable to “spamming”, and (d) uses of illicit or prohibited Content as provided for in paragraph 3.5 “Content” above.
3.7 Suspension of Services
Nokena-Plantfarm reserves the right to suspend all or part of the Services, in the event of (a) a proven risk for the stability and/or security of Plantfarm’s systems and environments, of the Services and/or of the data of the User, (b) planned maintenance, (c) a request from a competent administrative or judicial authority, (d) a notification from a third party within the meaning of article 6 of the Law for Confidence in the Digital Economy (“LCEN”) or (e) non-compliance with all or part of the conditions of use of the Services provided for in the Contract. Such suspension may take place immediately and without notice in case of emergency or necessity, and in particular in the cases described in points (a), (c) and (d) above, as well as in the event of illicit use or fraudulent use of the Services, or use made in violation of the rights of a third party, and more generally, any use on the basis of which the liability of Nokena-Plantfarm would be questioned.
To the extent possible, and subject to cases of judicial and administrative requisitions and non-compliance with these conditions of use of the Services, Nokena-Plantfarm takes care to limit the impact of the suspension on the normal functioning of the Services. The aforementioned suspensions in no way discharge the User from his obligation to pay all the amounts due to Nokena-Plantfarm under the Contract, without prejudice to the possibility, for the User, of engaging Nokena-Plantfarm’s liability under the conditions provided for in the “Liability” article below in the event that such suspensions result from a failure by Nokena-Plantfarm to fulfill its obligations. In the event that they result from a breach by the User of his obligations, the aforementioned suspensions occur without prejudice to the right for Nokena-Plantfarm to terminate the Contract under the conditions provided for in the article “Termination for breach” below and to seek compensation for the damage suffered. Subject to cases of termination or non-renewal of Services, suspensions of Services do not result in the deletion of User data.
3.8 Evolution of the Services
Nokena-Plantfarm may at any time and as of right modify the Services, in particular add, modify or delete ranges, options or functions and improve their performance. The Plants are described online on the Plantfarm Website. It is up to the User to be vigilant regarding changes to the Services, which are applicable immediately in the context of all new Orders.
Regarding his Services in use, the User is informed by email and via his Management Interface of any substantial change likely to degrade said Services, at least seven (7) calendar days before the implementation of the evolution. However, changes to Third Party Products and emergencies (such as a security risk or legal or regulatory compliance) may result in immediate changes to Services. Subject to the article “Specific conditions for Consumers”, in the event of changes degrading a Service in use (withdrawal of functionality, reduction in performance, etc.), the User may terminate said Service by registered letter with acknowledgment. of receipt or by email, within thirty (30) days of the implementation of the change.
3.9 Intellectual Property. Rights of use
All the elements (software, infrastructures, documentation, etc.) made available to the User by Nokena-Plantfarm as part of the Services and the execution of the Contract remain the exclusive property of Nokena-Plantfarm or of third parties who have granted it the right to use. Nokena-Plantfarm grants the User the right to use the said elements made available to him, only under the applicable conditions and for the duration of this Agreement. Subject to the aforementioned elements, made available to the User by Nokena-Plantfarm as part of the Services, the User remains solely responsible for acquiring all the authorizations and rights to use the elements and Content (such as data, software , applications, systems, websites, etc.) that it uses and operates as part of the Services. The User and the Users remain owners of their Content, Nokena-Plantfarm refraining from using them for purposes other than those provided for in the Contract. Subject to the legal provisions of public order in force, the User is not authorized to decompile the software, codes and algorithms used as part of the Services, in particular for reverse engineering purposes.
3.10 Export Control
Subject to the restrictions of use (a) provided for in the Terms of Service/Use in force or (b) specific to the User’s activities, Nokena-Plantfarm ensures that the Plants can be marketed and used within the European Union and in the countries in which the Data Centers used to provide the Services are located. If the User uses the Services or authorizes third parties to use the Services from a geographical area located outside the country in which the said Data Centers are located, it is their responsibility to verify that this use is not subject to any restriction under of the applicable legislation or regulations, and in particular with regard to EC Regulation 428/2009 of the Council of May 5th 2009 establishing a Community regime for the control of exports, transfers, brokering and transit of dual-use items, as well as United States of America regulations, such as EAR (Export Administration Regulations) and ITAR (International Traffic In Arms Regulations), Nokena-Plantfarm marketing third-party solutions provided by publishers subject to United States of America regulations. Nokena-Plantfarm reserves the right to refuse orders placed (a) from countries subject to trade restrictions or other sanctions, or (b) by nationals of such countries or persons subject to sanctions.
3.11 Third Party Products
Subject to the specific commitments that may be made within the framework of the applicable Special Conditions of Service, (a) Nokena-Plantfarm is not responsible for Third Party Products made available within the framework of the Services, which may in particular include technical errors, security breaches, incompatibilities or instabilities and gives no guarantee on the Third-Party Products made available as part of the Services (including all information and elements associated with it such as software, systems, applications, etc.) and (b) the User is authorized to use the Third Party Products made available to it by Nokena-Plantfarm, only as part of the Services, excluding in particular any possibility of decompiling, accessing sources, reinstalling the Third Party Software Products on other infrastructures or systems made available to it.
The User uses Third Party Products under his sole responsibility, in compliance with the Conditions of Service in force, and in particular ensures that they are suited to his needs and the purposes for which they are used.
3.12 Continuity and reversibility of Services
Unless otherwise provided in the applicable Special Conditions, the termination of the Services, whatever the cause (in particular termination of the Contract, non-renewal, termination of Services by the User, non-compliance with the Conditions of Service in force, etc. ), as well as certain operations to update and reinstall the Services, result in the automatic and irreversible deletion of all the Content (in particular the information, data, files, systems, applications, websites and other elements) reproduced, stored, hosted, collected, transmitted, disseminated, published, and more generally used and/or exploited by the User as part of the Services, including their possible backups. Before the expiration date of the Services, as well as before carrying out operations to delete, update or reinstall the Services, it is the User’s responsibility to carry out, under his sole responsibility, any operation (such as backup, transfer to third party solution, Snapshot, etc.) necessary for the conservation of its Content. At the request of the User, and subject to the stipulations of the “Confidentiality” article below, Nokena-Plantfarm provides him with any technical information relating to the Services that may facilitate the reversibility and recovery operations of its Content. These assistance services may give rise to additional invoicing for the time spent, on the basis of the financial conditions available on the Plantfarm Website or on request from Plantfarm Support. However, Nokena-Plantfarm does not carry out any operation of restitution and migration of User Content, which remains the sole responsibility of the latter. Subject to the data that Nokena-Plantfarm must keep in accordance with the regulations in force, the data referred to in article 8.3 “Plantfarm processing” below, and the data necessary for the defense of its rights, Nokena-Plantfarm undertakes, following when the Services are stopped, and unless otherwise agreed between the Parties or specific provision of the applicable Special Conditions, not to keep any copy of the User’s data.
3.13 Sale of plots
The User may sell his plots under the following conditions :
– Send an e-mail before the date of sale of the production indicating the number of the concerned plot
In order to guarantee the grower that he will be able to exploit the plot long enough to be profitable, and in order to fight against speculation in order to build an ethical and sustainable crowdgrowing for the grower, the following penalties apply in case of sale of plot before 3 years (day of end of contract included) :
1st year : 50% penalty on the price of the plot
2nd year : 25% penalty on the price of the plot
3rd year : 10% penalty on the price of the plot
ARTICLE 4 : PLANTFARM SUPPORT
4.1 The Plantfarm Support Team
The Plantfarm Support team is responsible for managing incidents encountered in the context of the Services and providing the User, upon request, with information concerning the conditions and characteristics of the Services. Subject to the other available Support levels referred to in point 4.4 below, Plantfarm Support is provided in English and French only, and information services concerning the Plants are provided during business hours only. Incidents are managed 365/24/7. In order to ensure the continuity of incident management, Nokena-Plantfarm reserves the right to subcontract part of the Support under the conditions provided for in the articles “Subcontracting” and “Processing of personal data”.
4.2 Recourse to Plantfarm Support
The User can contact the Plantfarm Support by email, by a specific form available on the Site or by telephone. However, during non-working hours, the Plantfarm Support can only be contacted by email or via the contact form. Each request or incident report gives rise to a recording by Plantfarm.
The User agrees not to abuse the Plantfarm Support. Before resorting to the Plantfarm Support, the User must in particular use the resources and information available on the Plantfarm Website and in his user area.
The User refrains from (i) contacting the Plantfarm Support for services or products that he has not contracted directly from Plantfarm, or (ii) putting the Plantfarm Support teams in touch with his own customers or any other third party to the Contract.
Plantfarm reserves the right to refuse to take charge of requests that do not comply with these conditions. The User undertakes to adopt adequate, cordial and respectful conduct in his relations with the Plantfarm Support.
Plantfarm reserves the right to no longer respond to the User’s requests and to immediately terminate the Contract in the event of offensive, outrageous or degrading behavior. In addition, such behavior may be the subject of legal proceedings against and against the User, Nokena-Plantfarm being able, in this context, to resort to any means of proof that it deems useful and appropriate (extracts from communications with the User, screenshots, emails, telecommunication recordings, …). Subject to the other available Support levels referred to in point 4.4 below, basic Plantfarm Support is included in the price of the Services.
4.3 Incident management
In the event of a malfunction of the Services, the User first performs the technical tests recommended on the Plantfarm Website.
If these tests do not resolve the incident, the User declares it to Plantfarm Support under the conditions described above, providing as much information as possible to enable the correct diagnosis. If an incident is reported, the Plantfarm Support will carry out the necessary investigations to identify the cause of the malfunction encountered and establish a diagnosis. The User undertakes to remain available at all times in order to be able to collaborate with Plantfarm in the diagnosis and resolution of the incident, in particular by providing it with any additional information, and by carrying out all the necessary tests and checks. As part of incident management, Nokena-Plantfarm and its Affiliates are expressly authorized by the User to connect to the User’s Services, both at the hardware and software level, and to perform any necessary operation for the preparation of the diagnosis.
This connection may require the User to intervene on his Service. Plantfarm undertakes to keep the User informed of the progress of operations. If Plantfarm finds that its Services are available and in good working order, that the existence of the incident cannot be confirmed or that the incident is not the responsibility of Nokena-Plantfarm, Plantfarm will inform the User. In this case, the time spent by Nokena-Plantfarm to carry out the diagnosis and assist the User may be billed as additional services on a flat-rate basis at the rate which can be viewed on the Plantfarm website and recalled when the incident is reported. Nokena-Plantfarm reserves the right to refuse any intervention if it finds during its research that the User is using the Service in violation of the Contract or of the laws or regulations in force. If it appears that the incident falls under its responsibility, Nokena-Plantfarm finalizes the diagnosis and works to restore the availability of the affected Services. In this case, the intervention of Nokena-Plantfarm does not give rise to any additional invoicing. The diagnosis is established by Nokena-Plantfarm by all means, and in particular on the basis of exchanges between the Parties and data from the Plantfarm information system. Subject to the applicable Special Conditions and the other levels of Support referred to in point 4.4 below, Nokena-Plantfarm does not give any guarantee of intervention time and incident resolution in the context of the Nokena-Plantfarm Support.
4.4 Other levels of Support
In addition to the Plantfarm Support described above (Basic Plantfarm Support), Nokena-Plantfarm offers other levels of Support allowing the User to benefit from additional services and levels of engagement. These Support levels are described in the Special Conditions and corresponding documentation, available on the Plantfarm Website or on request from Plantfarm Support.
ARTICLE 5 : RESPONSIBILITY
5.1 Capacity
Each of the Parties declares and guarantees that they have the authority and the capacity necessary for the conclusion of the Contract and for the performance of the obligations incumbent on it. The User and Nokena-Plantfarm declare and guarantee in particular that they have all the authorizations, skills and knowledge (in particular technical), allowing them respectively to use and provide the Services in accordance with the conditions provided for in the Contract.
5.2 NOKENCHAIN-PLANTFARM’S RESPONSIBILITY
WHERE THE APPLICABLE SPECIAL TERMS OF SERVICE PROVIDE FOR SERVICE LEVEL COMMITMENTS, THE PENALTIES OR CORRESPONDING CREDITS THAT MAY BE DUE BY NOKENA-PLANTFARM TO THE USER CONSTITUTE A LUMP-SUM COMPENSATION OF ALL DAMAGES FOR NON-COMPLIANCE RESULTING FROM OF SERVICE IN QUESTION; THE USER WAIVING THIS TITLE OF ANY OTHER REQUEST, CLAIM AND/OR ACTION. IN THE ABSENCE OF AN APPLICABLE SERVICE LEVEL COMMITMENT, THE TOTAL ACCUMULATED AMOUNT OF COMPENSATION THAT MAY BE CHARGED TO NOKENA-PLANTFARM (RELATED COMPANIES, SUBCONTRACTORS AND SUPPLIERS INCLUDED) IN THE EVENT OF FAILURE OR FAILURE OF ITS ALL BREACHES COMBINED : (A) IN THE AMOUNT OF THE AMOUNTS PAID BY THE USER TO NOKENA-PLANTFARM IN CONSIDERATION FOR THE IMPACTED SERVICES DURING THE SIX (6) MONTHS PRECEDING THE CUSTOMER’S CLAIM FOR COMPENSATION OR (B) TO THE DIRECT INJURY SUCHED BY THE USER IF LOWER.
5.3 DISCLAIMER OF LIABILITY
NOKENA-PLANTFARM’S RESPONSIBILITY CANNOT BE INVOLVED ON THE FOLLOWING BASIS :
(A) USE OF THE SERVICES THAT DOESN’T COMPLY WITH THE CONDITIONS PROVIDED FOR IN THE CONTRACT;
(B) NON-PERFORMANCE, FAILURE, MALFUNCTION OR UNAVAILABILITY OF SERVICES RESULTING FROM A THIRD PARTY (EXCLUDING NOKENA-PLANTFARM SUB-CONTRACTORS), USER, THIRD-PARTY PRODUCT, OR USER FAILURE TO ITS OBLIGATIONS;
(C) CONSEQUENTIAL DAMAGES SUCH AS, IN PARTICULAR, DAMAGE OR COMMERCIAL DISORDER, LOSS OF ORDERS, LOSS OF OPERATION, DAMAGE TO BRAND IMAGE, LOSS OF PROFITS OR CUSTOMERS (FOR EXAMPLE, UNINTENDED DISCLOSURE OF CONFIDENTIAL INFORMATION CONCERNING AS A RESULT OF DEFECT OR HACKING OF THE SYSTEM, ACTION OF A THIRD PARTY AGAINST USE, ETC);
(D) LOSS, DISCLOSURE OR ILLEGAL OR FRAUDULENT USE OF USER AUTHENTICATION MEANS BY THE USER OR THIRD PARTIES;
(E) SUSPENSION OF ACCESS OR TEMPORARY OR DEFINITIVE SUSPENSION TO THE SERVICES OPERATED UNDER THE CONDITIONS PROVIDED FOR IN ARTICLE 3 OF THESE GENERAL CONDITIONS (IN PARTICULAR RESULTING FROM A REQUEST FROM A COMPETENT ADMINISTRATIVE OR JUDICIAL AUTHORITY, OR NOTIFICATION OF A THIRD PARTY WITHIN THE MEANING OF ARTICLE 6 OF THE LCEN OR EQUIVALENT);
(F) LOSS, ALTERATION OR DESTRUCTION OF ALL OR PART OF THE CONTENT (INFORMATION, DATA, APPLICATIONS, FILES OR OTHER ITEMS) HOSTED ON THE INFRASTRUCTURE, AS NOKENA-PLANTFARM IS NOT IN CHARGE OF THE MANAGEMENT OF THE CONTINUITY OF THE USER ACTIVITIES AND IN PARTICULAR BACKUP OPERATIONS;
(G) INADEQUACY OF THE SERVICES TO THE NEEDS OF THE USER (PARTICULARLY WITH REGARD TO THE SENSITIVITY OF THE DATA CONCERNED);
(H) SECURITY INCIDENTS RELATED TO THE USE OF THE INTERNET, ESPECIALLY IN THE EVENT OF LOSS, ALTERATION, DESTRUCTION, DISCLOSURE OR UNAUTHORIZED ACCESS TO USER DATA OR INFORMATION ON OR FROM THE INTERNET NETWORK;
(I) DAMAGE TO SYSTEMS, APPLICATIONS AND OTHER ELEMENTS INSTALLED BY THE USER ON THE INFRASTRUCTURE.
5.4 Responsibility of the User
The User assumes all the risks and perils related to his activities and is in particular solely responsible for the use of the Services made available to him by Nokena-Plantfarm and for compliance with the Conditions of Service / Use in force, including when the Services provided at its disposal are used by or on behalf of third parties. The User remains responsible in particular for (a) the suitability of the Services ordered to his needs and to the needs of third parties by or on behalf of whom they are used, (b) Content such as information, data, files, systems, applications, software, websites and other elements reproduced, hosted, installed, collected, transmitted, disseminated or published, and more generally used and / or exploited as part of the Services, as well as (c) the management and use of said Content (in particular their control, validation, update, deletion, backup, as well as any measure likely to protect against the loss and alteration of Content), including when they belong to third parties or are used or operated by or on behalf of third parties, and (d) compliance with applicable laws and regulations.
When the User uses the Services as part of a professional activity, or when acting on behalf of third parties, he undertakes to take out, with a well-known solvent organization, civil liability insurance covering all damage that may be attributed to it, and undertakes to maintain this insurance (or any other equivalent insurance) throughout the duration of the Contract.
The User understands that crowdgrowing is not a speculative activity and that it is above all done to help farmers.
5.5 Guarantee
Each of the Parties guarantees to carry out its activities in accordance with the regulations in force. The User notably guarantees Nokena-Plantfarm against all consequences resulting from (a) the use or exploitation of illegal Content within the framework of the Services, (b) fraudulent use of the Services or non-compliance with the laws and regulations in force, (c) use of the Services made in violation of the rights of third parties, (d) the inadequacy of the selected Services to its needs or the needs of third parties, and (e) loss or non-use -authorized or fraudulent means of authentication of Users. The User undertakes to intervene in the context of all requests, claims and/or actions of third parties involving the Content and/or the Terms of Service/Use, including the administrative and judicial authorities, and to indemnify Nokena-Plantfarm for all damages resulting therefrom (including conviction, reasonable defense costs, etc.).
5.6 Third parties
Under this Agreement, Nokena-Plantfarm does not make any commitment to third parties, and in particular to Users, no stipulation that may be interpreted as creating third party beneficiaries of this Agreement. The User alone is in charge of the relationship he has with third parties, in particular with Users of the Services, and guarantees Nokena-Plantfarm against all requests, claims and / or actions of third parties, involving the Plantfarm Services. The User undertakes to notify Nokena-Plantfarm in writing as soon as possible of all requests, complaints and / or actions of third parties involving the Plantfarm Services, specifying the subject of the request as well as any useful information in order to that Plantfarm can communicate to the User the useful elements in its possession.
5.7 Force Majeure
Neither Party can be held liable on the basis of a failure resulting, directly or indirectly, from unforeseeable events having the characteristics of force majeure as defined by article 1218 of the Civil Code. However, to be able to avail itself of this provision, the Party which is prevented from fulfilling its obligations must inform the other Party as soon as possible and in writing, specifying the circumstances and the foreseeable duration of this situation, and keep it regularly informed of developments in the situation. If, despite the efforts of the defaulting Party, its failure lasts for more than thirty (30) consecutive days, the other Party may, as of right, terminate all or part of the affected Services.
ARTICLE 6 : FINANCIAL CONDITIONS
6.1 Price of Plants
The prices of the Plants billed to the User are those in effect at the time of billing, as published on the Plantfarm Website. Prices are also communicated on simple request addressed to Plantfarm Support.
Unless otherwise specified, prices are in euros and cryptocurrencies. Depending on the type of Plants, Plantfarm offers different types of prices to which can be associated, depending on the case, a period of commitment and/or a method of specific billing. When for the same Service, several types of prices are available, the User selects the one of his choice at the time of the Order. When they are mentioned exclusive of tax (in particular concerning Services intended for professionals), VAT as well as any other tax applicable to the Services (excluding taxes and levies on Nokena-Plantfarm’s income) are added to the price of the Plants and are due by the latter without this being able to be considered as a price change within the meaning of article 6.2 below. Unless specifically provided for pricing, the price of the Services includes the cost of acquiring licenses and rights to use the tools, software and operating systems used by Nokena-Plantfarm and/or, where applicable, made available to the User by Nokena-Plantfarm in as part of the Services. It is up to the User to acquire and discharge any license or right of use necessary for the exploitation of the Content he uses as part of the Services. The methods for calculating the prices of the Services and the units of work are defined on the Plantfarm Website and in the applicable Special Conditions. It is up to the User to take cognizance of it before placing an order. Each unit of work started is invoiced and due in full, including if it is not fully used. Certain Services give rise to additional installation or commissioning costs.
6.2 Price change
Nokena-Plantfarm reserves the right to modify its prices at any time. Price changes are applicable immediately to any new Order. For the Services in use, in the event of a price increase, the Customer is informed with a notice period of thirty (30) calendar days by email. In this case and subject to the article “Specific conditions for Consumers”, the User will have, from this information, a period of thirty (30) calendar days to terminate the impacted Services without penalty, by registered mail with acknowledgment of receipt or via the form provided for this purpose on the Plantfarm website. Otherwise, the User will be deemed to have accepted the new prices. The aforementioned termination option is not applicable in the event of a price increase resulting from unforeseeable circumstances within the meaning of Article 1195 of the Civil Code. In this case, the provisions of the said article are applied.
6.3 Billing
The Services are billed on the basis of the User’s consumption and Orders recorded by Plantfarm in its information system, which is authentic and is fully enforceable against the User. The frequency (monthly, annual, or other) and timing (upon Order or in arrears) of invoicing varies from one Service to another. The conditions for invoicing the prices of the Services are defined on the Plantfarm Website and in the applicable Special Conditions of Service. It is up to the User to take cognizance of it before placing an order. After each payment, Plantfarm sends the User an invoice, at the User’s request. The User expressly accepts that the invoice will be sent to him electronically. The invoice is communicated to the User by e-mail. It is up to the User to keep a copy in accordance with the regulations in force.
6.4 Payment
Invoices are payable upon receipt, it being specified that depending on the Services, invoices are issued either upon the Order or in arrears. It is up to the User to select in his Management Interface the desired payment method among the available payment methods. The available payment methods may vary from one Service to another. It is up to the User to take cognizance of it before placing an order. Regarding Services payable in arrears, Nokena-Plantfarm reserves the right to invoice said Services to the User before the end of the current calendar month, as soon as the Services consumed by the User during the month in question reach a significant total amount. The User is solely responsible for payment for the Services under the aforementioned conditions. He agrees to use a valid means of payment and to have the necessary funds to pay for the Services. Subject to the right of withdrawal provided for in the article “Specific conditions for Consumers”, the prices are due in their entirety, the User not being able to claim any reimbursement in the event of non-use, partial use, suspension or termination of the service. This is without prejudice to the possibility for the User to engage the responsibility of Nokena-Plantfarm under the conditions provided for in the “Responsibility” article below, if this situation results from a failure by Nokena-Plantfarm to fulfill its obligations.
6.5 Default and late payment
In the event of default or late payment, including partial payment, the User is liable for late payment penalties due the day following the payment deadline, and the interest rate of which is equal to three times the payment rate legal interest. In addition, any default or late payment (even partial) of sums due by the User in performance of the Contract, persisting for more than (4) four calendar days after notification of default or late payment sent to the User by email, entails as of right and without the need for additional notification or formal notice (a) the immediate payment of all sums remaining due by the User under the Contract, regardless of the method of payment provided, and (b) the possibility for Nokena-Plantfarm immediately and without notice to suspend all or part of the User’s Services (including those which have been paid), to refuse any new Order or renewal of Services, and to terminate, as of right, by email, the Contract in whole or in part. In the event of default or late payment, Professional Users are liable for a lump sum compensation for recovery costs of forty (40) euros, without prejudice to the possibility for Nokena-Plantfarm to request, upon justification, additional compensation when the costs recovery costs are greater than the amount of said fixed compensation.
6.6 Dispute
Any disagreement regarding billing and the nature of the Services must be notified to the Plantfarm Support, by email or form message, within one (1) month after issuance of the invoice. Failing that, and without prejudice to the possibility for the User to subsequently dispute the invoicing, the User is required to pay unpaid invoices under the conditions provided for in the Contract. In the event of failure to invoice, Nokena-Plantfarm is authorized to regularize said invoices within the limits of the limitation rules in force.
ARTICLE 7 : DURATION, RENEWAL AND TERMINATION OF SERVICES
7.1 Duration of Services
The Contract is concluded for an indefinite period and remains in force as long as the User uses Plantfarm Services. The period during which the User undertakes to use the Services ordered is that applicable to the tariff option selected by the User at the time of the Order (the “Period of Use”). In the event of a flat-rate or subscription payment (monthly, annual or other), and subject to the article “Specific conditions for Consumers”, the User undertakes to use the Services for the entire corresponding period. Failing this, and in particular in the event of suspension or early termination of the use of the Services, the User remains required to pay the package in full and cannot claim any reimbursement in this regard. In the event of pay-as-you-go, the Services are made available for an indefinite period, the User being able to terminate them at any time under the terms in force.
7.2 Renewal of Services
The conditions for renewing the Services vary from one type of Service to another. Some renew automatically (“Auto-renew”) and others by prior payment from the User.
In the event of an option, it is up to the User to select the renewal method of his choice. For some Services, Auto-renew is enabled by default. Requests for renewal by payment are automatically rejected in the event of non-payment or irregular payment (in particular incorrect amount, incomplete payment, or not including the required references, or carried out by a means or procedure not accepted by Nokena-Plantfarm). As this is a renewal paid by check, it is up to the User to request the renewal with sufficient time so that the check is actually received by Plantfarm before the Service expires. Plantfarm reserves the right to terminate a renewal, in particular in the event of termination of the Service with a reasonable notice period.
7.3 Termination for default
Without prejudice to the other cases of termination provided for in the Contract, in the event of a breach by one of the Parties of all or part of the obligations imposed on it, the Services may be terminated by registered mail with acknowledgment of receipt after notification of the breaches in question has been sent by email with acknowledgment of receipt to the defaulting Party and has remained ineffective for more than seven (7) calendar days. Notwithstanding the foregoing, in the event of malicious, illegal or fraudulent use of the Services, or use made in violation of the rights of a third party, Nokena-Plantfarm may, as of right, terminate the Services concerned or the Contract in its entirety, by email and without prior notice. This paragraph does not affect Nokena-Plantfarm’s right to suspend or interrupt the Services under the conditions provided for in the Contract, in particular in the event of non-compliance with the Conditions of Service in force.
Terminations for default are without prejudice to any damages that may be claimed from the defaulting Party.
ARTICLE 8 : PROCESSING OF PERSONAL DATA
8.1 Compliance with applicable regulations
The Parties undertake to comply with the legal and regulatory provisions in force relating to information technology, files and freedoms, in particular Law No. 78-17 of January 6, 1978, amended by Law No. 2004-801 of August 6 2004, as well as (EU) Regulation 2016/679 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), from the date of application. Each of the Parties undertakes in particular, with regard to the processing of personal data for which it is responsible, to respect the rights of the persons concerned (in particular the right to information, access, rectification and deletion of data).
The User, who remains solely responsible for the choice of Services, ensures that the Services have the characteristics and conditions required to be able to proceed with the processing of personal data envisaged in the context of the use of the Services, taking into account the regulations in force, in particular when the Services are used to process sensitive data. When Nokena-Plantfarm offers Services intended to enable the User to process personal data subject to specific legal or regulatory provisions, Nokena-Plantfarm communicates to the User the scope of responsibility of the latter, as well as the conditions under which Nokena-Plantfarm complies with said standards or regulations.
8.2 Processing carried out by or on behalf of the User
8.2.1 Responsibility for processing
The User remains solely responsible for the processing of personal data carried out for his own account within the framework of the Services, whether by himself, by Nokena-Plantfarm or by third parties. Regarding the processing of personal data carried out by Nokena-Plantfarm on behalf of the User as part of the performance of the Services (in particular support services), Nokena-Plantfarm acts as a subcontractor on the sole instructions of the User. .
8.2.2 Safety
Nokena-Plantfarm takes, under the conditions provided for in the Contract, all useful precautions to preserve the security and confidentiality of the personal data to which it has access, and in particular to prevent them from being distorted, damaged, or that unauthorized third parties have access. In this regard, Nokena-Plantfarm undertakes in particular not to access or use the User’s data for purposes other than for the purposes of performing the Services (and in particular the Support services).
Nokena-Plantfarm may however be required to communicate said data to judicial and / or administrative authorities, in particular in the context of requisitions. In this case, and unless there is a legal provision or injunction of the competent authority preventing it, Nokena-Plantfarm undertakes to inform the User and to limit the communication of data to those expressly required by said authorities. Nokena-Plantfarm undertakes to put in place (a) physical security measures aimed at preventing access to the infrastructures on which the User’s data is stored by unauthorized persons, (b) identity checks and access via an authentication system as well as a password policy, (c) an authorization management system making it possible to limit access to the premises to only people who need to access it as part of their duties and their scope of activity, (d) security personnel responsible for ensuring the physical security of Nokena-Plantfarm premises, (e) a system of physical and logical isolation of Users from each other, (f) authentication processes users and administrators, as well as measures to protect administration functions, (g) in the context of support and maintenance operations, an authorization management system implementing the principles of least privilege and need to know, and (h) of the processes and devices allowing to trace all the actions carried out on its information system, and to carry out, in accordance with the regulations in force, reporting actions in the event of an impacting incident User data.
The User ensures the security of the resources, systems and applications that he deploys within the framework of the use of the Services, and remains in particular responsible for the implementation of flow filtering systems such as firewalls, the updating of systems and software deployed, access rights management, resource configuration, etc. Nokena-Plantfarm will in no way be responsible for security incidents related to the use of the Internet, in particular in the event of loss, alteration, destruction, disclosure or unauthorized access to data or information of the User.
8.2.3 Location and data transfers
When the Services allow the User to store Content, the location or, as the case may be, the geographical area, of the available Data Center (s) is specified on the Plantfarm Website. When several locations or geographical areas are available, the User selects the one (s) of his choice at the time of the Order. Subject to the applicable Special Conditions of Service, Nokena-Plantfarm refrains from modifying, without the agreement of the User, the location or geographical area provided for in the Order, of the Content stored by the User as part of the Services. Subject to the foregoing regarding the location of Data Centers, Nokena-Plantfarm Affiliates located within the European Union, in Canada, as well as in any other country recognized by the European Commission as having a level of protection sufficient personal data with regard to the protection of privacy and fundamental rights and freedoms of individuals, as well as with regard to the exercise of the corresponding rights, are permitted, excluding the United States America, to access the personal data stored by the User in the context of the Services only for the purposes of performing the Services, in particular in the context of Plantfarm Support. The list of Related Companies that may be involved in the performance of the Services is communicated on the Plantfarm Website or at the User’s request to Plantfarm Support.
No access to data stored by the User within the framework of the Services from a country considered by the European Commission as not ensuring a sufficient level of protection of personal data is authorized, except (a) contrary provision of the Conditions Particulars of Service applicable, or (b) choice of the User of Data Centers located outside the European Union and Canada or (c) specific agreement of the User.
In the event that personal data stored by the User as part of the Services is transferred outside the European Union to a country of destination considered by the European Commission as not ensuring a sufficient level of data protection of a personal nature, one of the following guarantee mechanisms is in place: (a) signature of a contract in accordance with the standard contractual clauses adopted by the European Commission, or (b) at the discretion of Nokena-Plantfarm, implementation of Binding Corporate Rules (“Binding Corporate Rules” or “BCR”) recognized as complying with the requirements set by the Group in Article 29 of Directive 95/46/EC to be deemed to provide a sufficient level of protection to personal data transferred within Nokena-Plantfarm, or (c) any other protection device in accordance with the regulations in force.
The User is responsible for all formalities and requests for authorizations necessary for the transfers of personal data provided for under the Contract, to the persons concerned and the competent authorities.
8.2.4 Audit
Nokena-Plantfarm can make available to the confirmed User, information concerning the Security measures implemented within the framework of the Services in order to allow the confirmed User to ensure that these measures correspond to his needs or to those of Users. When the Services are certified or subject to specific audit procedures, Nokena-Plantfarm may make the corresponding certificates and audit reports available to the Confirmed User. Certain Services are eligible for on-site audits under the conditions provided for in the applicable Special Conditions. The aforementioned services may give rise to additional invoicing.
8.3 Plantfarm treatments
As part of the Services, Nokena-Plantfarm collects the User’s personal data, which is subject to automated processing under the conditions provided for by the aforementioned law n° 78-17, for purposes (a) of management the Plantfarm User relationship (invoicing, assistance and maintenance of the Services, commercial management, archiving, telephony, improvement of the quality, security and performance of services, recovery, etc.), and (b) compliance with regulations applicable to Nokena-Plantfarm (in particular legal obligations to store login and user identification data). Nokena-Plantfarm undertakes not to use the data thus collected for purposes other than those mentioned above. Nokena-Plantfarm may however be required to communicate them to judicial and/or administrative authorities, in particular in the context of requisitions. In this case, and unless otherwise provided by law, Nokena-Plantfarm undertakes to inform the User and to limit the communication of data to those expressly required by said authorities. The data processed for the purposes of managing the relationship between the User and Nokena-Plantfarm consist of information such as surname, first name, postal address, email address, telephone numbers of the User’s employees and are kept by Nokena-Plantfarm for the entire duration of the Contract and the following thirty-six (36) months. User login and identification data is kept by Nokena-Plantfarm for twelve (12) months. Other personal data collected and processed by Nokena-Plantfarm in order to comply with its legal obligations are kept in accordance with applicable law. Within the framework of the purposes defined above, the User accepts that the aforementioned personal data concerning him/her will be transferred by Nokena-Plantfarm to its Related Companies which intervene within the framework of the execution of the Contract, including outside the European Union. However, they will only be able to access this personal data within the framework of the aforementioned purposes, and in strict compliance with the User’s rights in terms of personal data protection. In order to guarantee adequate protection of said personal data collected by Nokena-Plantfarm, Nokena-Plantfarm has adopted binding internal corporate rules (“Binding Corporate Rules” or “BCR”), which bind Nokena-Plantfarm and all of its Affiliates, and whose Nokena-Plantfarm company is highly respected by them. These rules are based on European directives 95/46/EC and 2002/58/EC, relating to the protection of personal data and aim to put Nokena-Plantfarm’s practices in terms of personal data protection, in compliance with said directives. In accordance with the “Informatique et Libertés” law of January 6, 1978, the User has the right to access, rectify and delete the aforementioned information concerning him. He may exercise this right and obtain communication of said information from Plantfarm by email to the email address : contact (at) plantfarm.eu or by post to the address which will be communicated to him by justifying his identity. It will be answered within thirty (30) days of receipt.
ARTICLE 9 : CONFIDENTIALITY
9.1 Commitments
Each of the Parties undertakes, with regard to the confidential information of the other Party to which it is the recipient or to which it has access in the context of the execution of this Contract : (a) to use said confidential information only in the purpose of the execution of the Contract, (b) to preserve the confidentiality of said information with the same degree of care as if it were his own confidential information, and (c) to give access to said confidential information only to those of its employees and Affiliates who need to know about their function, provided that these recipients are informed beforehand of the confidential nature of said information, and that they are bound by a confidentiality commitment at least equivalent to this commitment. Each Party is also authorized to communicate the confidential information of the other Party to its counsel as long as they are part of a regulated profession subject to professional secrecy (such as lawyers, accountants or auditors). Each of the Parties shall refrain from disclosing the confidential information of the other Party to persons other than those mentioned above without the prior written consent of the other Party, and is committed to respecting the confidentiality of said information by all the people to whom it discloses them. The conditions of the Contract and all information communicated between the Parties, or to which the Parties have access within the framework of the execution of the Contract, and whatever its form and nature (in particular financial and marketing information, trade secrets, know-how, information relating to security and the conditions of use of the Services). For information to be considered confidential, it is not necessary that its confidential nature be mentioned on the document or other medium containing the said information, or that it be specified at the time the information is disclosed.
9.2 Exceptions
The confidentiality commitments defined above do not apply to information of which the Receiving Party can demonstrate that (a) the Receiving Party was legitimately aware of it without being obliged to keep it confidential, before the other Party communicates it to it or gives access to it, (b) they are in the public domain other than because of a failure by the recipient Party (or persons for whom it is responsible) to comply with the confidentiality obligation covered by this Contract, ( c) they have been communicated to the Recipient Party by a third party in a legitimate manner and with authorization to disclose them, (d) they result from developments carried out by the Recipient Party and/or by its collaborators, independently of the execution of the Contract, or (e) the disclosure of such information has been authorized by the other Party under the conditions provided for in the Contract. Notwithstanding the foregoing, each Party reserves the right to disclose information received from the other Party (a) within the strictly necessary limit for the defense of its rights, it being specified that in this case, the confidential information of the ‘other Party are kept for the legal necessary time’ for the administration of the evidence, and can only be disclosed to persons who need to know about it in the context of the action or procedure in question (magistrates, legal advisers, etc.), which are subject to professional secrecy or, failing that, bound by a confidentiality agreement, and (b) at the request of a competent administrative or judicial authority, it being specified that in such a case, the disclosure will be strictly limited at the request of said authority, and that, subject to any legal provision or injunction to the contrary, the receiving Party informs the other Party of the said request.
ARTICLE 10 : GENERAL PROVISIONS
10.1 Severability
The invalidity of one of the clauses of the Contract signed with Nokena-Plantfarm in application in particular of a law, a regulation or following a decision of a competent court which has become final will not entail the invalidity. other clauses of the Contract which will retain their full effect and scope. In this case, the Parties shall, as far as possible, replace the annulled provision with a valid provision corresponding to the spirit and the object of the Contractual Conditions.
10.2 Titles
The titles of the articles of the contractual conditions are intended only to facilitate references and do not in themselves have a contractual value or a particular meaning.
10.3 Tolerance
The fact that Nokena-Plantfarm does not avail itself at any given time of any of these General Terms and/or tolerates a breach by the other Party of any of the obligations referred to in these General Terms cannot be interpreted as constituting a waiver by Nokena-Plantfarm to subsequently invoke any of the said Terms.
10.4 Contractual documents
The Contract consists of the Terms of Service/Use which constitute the entire Contract between the User and Nokena-Plantfarm, excluding in particular the General Terms of the User and all other documents, agreements or previous discussions. Nokena-Plantfarm may modify the Terms of Service/Use at any time as of right. These modifications are immediately applicable to all new Orders. Regarding his Services in use, the User is notified by email or via its management interface of any modification of the Terms of Service/Use in force. Changes to the Terms of Service/Use only come into force thirty (30) calendar days after sending the aforementioned notification. However, changes to Third Party Product Conditions and legal or regulatory compliance may occur immediately to the extent that Nokena-Plantfarm does not control them. Subject to the article “Specific Conditions for Consumers”, when new Terms of Service/Use are unfavorable to the User, the latter may terminate the affected Services by registered letter with acknowledgment of receipt or by electronic mail, in a maximum period of thirty (30) calendar days from the entry into force of the new Terms of Service/Use.
10.5 Independence
The Parties agree that nothing in the Contract may be interpreted as constituting a mandate, a joint venture, a de facto company, a joint venture or any other form of grouping, joint venture or association. Each Party remains fully independent, master of the management of its affairs, and responsible for all of its actions, and alone assumes all the risks associated with its activity.
10.6 Assignment of Contract
Neither Party is authorized to assign this Agreement, even partially, without the prior written consent of the other Party. However, notwithstanding the foregoing, each of the Parties may freely assign all or part of this Contract to its Affiliates. In this case, it notifies the other Party as soon as possible in writing, and vouches for compliance with the Contract by the assignee (s) Related Company (s). The following transactions do not fall within the scope of this article, and are authorized: (a) changes in shareholding, changes in ownership and changes in control of either Party, and ( b) operations such as mergers, acquisitions, sales of goodwill, sales of activities and other transactions leading to a transfer of assets from either Party. If one of the Parties carries out one of the operations mentioned in points (a) and (b) above, it shall inform the other Party thereof. If the transaction is carried out for the benefit of a direct competitor of the other Party, the latter is authorized to terminate the Contract as of right and without compensation.
10.7 Communications
For any exchange of information by e-mail, the date and time of the Nokena-Plantfarm server will prevail between the Parties. This information will be kept by Nokena-Plantfarm for the entire period of the contractual relationship and for the following three (3) years. Subject to the other modes of communication and recipients provided for in the Contract, all notifications, formal notices and other communications provided for in the Contract are deemed to have been validly delivered if they are sent by registered letter with acknowledgment of receipt or by email.
10.8 Advertising and promotion
Unless the User decides otherwise from his Management Interface, Nokena-Plantfarm is authorized to rely on the commercial relationship maintained between the User and Nokena-Plantfarm as part of the usual conduct of its commercial activities with its customers and prospects. Any other mention by Nokena-Plantfarm to the User, as well as any other use of its distinctive signs (logos, brands, etc.), particularly in the context of advertisements, public events, conferences and specialized publications on professional markets, or on its brochures, commercial documents or Plantfarm website, is subject to the prior agreement of the User.
10.9 Convention of proof
It is expressly agreed that the data of the information system of Nokena-Plantfarm or its subcontractors, such as connection logs, consumption statements, order and payment summaries, incident management report or others, are fully enforceable against the User and admissible including in the context of litigation proceedings.
10.10 Computation of time limits
By way of derogation from the provisions of articles 640 and following of the Code of Civil Procedure, and subject to different stipulations in this Contract, the deadlines are calculated in calendar days, and begin to run from the day after their triggering event.
ARTICLE 11: JURISDICTIONAL JURISDICTION AND APPLICABLE LAW
11.1 Jurisdiction
In the event of a dispute with a User who is not considered to be a Consumer within the meaning of the Consumer Code, express jurisdiction is attributed to the Commercial Court of Cergy-Pontoise (France), notwithstanding multiple defendants or call in warranty, including for measures of ‘urgency, conservatories in summary or on request.
11.2 Applicable law
The present contract is regulated by French law. This is the case for the substantive rules as for the formal rules, to the exclusion, on the one hand, of the conflict rules provided for by French law, and on the other hand, of the provisions of French law which would be contrary to this Agreement.
ARTICLE 12: CONSUMERS SPECIFIC CONDITIONS
The stipulations below apply only to Users having the status of Consumer within the meaning of the introductory article of the Consumer Code. They supplement the other stipulations of the Nokenchain-Plantfarm General Conditions of Services which remain fully applicable to said Consumer Users, subject to the stipulations to which article 12.2 below expressly derogates.
12.1 Additional provisions
The stipulations below supplement the General Terms of Service/Use of Nokena-Plantfarm, which remain fully applicable to Consumer Users.
12.1.1 Provision of Services
Nokena-Plantfarm undertakes to make the Service available to the User within the period specified in the Order, or in the absence of indication or agreement as to the date of the provision of the Service, within a maximum period of fifteen (15) days following validation of the Order. If the Service is not made available to the User within the aforementioned applicable period, the User may request the cancellation of the Order by registered mail with acknowledgment of receipt or by sending an email specifying in the subject line his message “Termination for lack of provision”. The sums paid by the User are refunded to him within fourteen (14) days following cancellation of the Order under the aforementioned conditions.
12.1.2 Right of withdrawal
In accordance with articles L221-18 et seq. Of the Consumer Code, and in particular articles L221-28 1 ° and L221-28 3, the User benefits from a right of withdrawal. He can exercise this right, without having to justify reasons or to pay penalties with the exception, where applicable, of return costs, within fourteen (14) days from the day after his Order.
The User must exercise his right of withdrawal before the expiry of the aforementioned period by sending a withdrawal email or any other declaration, unambiguous, expressing his desire to withdraw.
The User receives this information at the time of the order and before deposit.
Example of withdrawal wording :
I hereby notify you of my withdrawal from the contract for the sale of good X / for the provision of services Y below, ordered on DATE, received on DATE.
– Name of consumer(s)
– Address of consumer(s)
– Signature of consumer (s) (only if this form is notified on paper)
– Date
The right of withdrawal, if it has been validly exercised, allows the User to obtain reimbursement of the goods and Services concerned, less a pro-rated amount in proportion to the number of days during which said goods and Services were made available to the User. The User cannot exercise his right of withdrawal in the cases provided for in article L221-28 of the Consumer Code, in particular for Services fully performed before the end of the withdrawal period or for goods and Services made according to the consumer specifications or clearly personalized. In this case, the User is informed at the time of the Order and is invited to waive his right of withdrawal.
12.1.3 Termination
In accordance with article L224-39 of the Consumer Code, any request for termination of the Contract by the User will be effective from the day after the date of receipt by Nokena-Plantfarm, provided that the User has specified all of the information required allowing its identification. The User may also request that this termination take effect more than ten (10) days after receipt by Nokena-Plantfarm of his request for termination.
12.1.4 Complaints
For any complaint relating to Plantfarm services, it can be addressed :
– As a first resort by email.
– As a second resort, when the User has not received a response within thirty (30) calendar days of receipt of his complaint or in the event that he is not satisfied with the response provided by the User Service , he can apply again by registered letter with acknowledgment of receipt.
The User’s request will be reviewed within thirty (30) calendar days from its receipt by the Nokena-Plantfarm National Consumer Service.
– As a 3rd resort, when the User is recognized as a Consumer within the meaning of the provisions of the Consumer Code, if the latter has followed the aforementioned complaint process and remains dissatisfied with the response provided by the National Consumer Service, it can contact the electronic communications mediator (AMCE) directly and free of charge according to the procedures detailed on the website www.mediateur-telecom.fr.
The Mediator’s referral form is available on his website or from the National Consumer Service on request.
12.2 Derogatory stipulations
The stipulations below are intended to replace the stipulations of the Nokena-Plantfarm General Terms of Service/Use to which they expressly derogate.
12.2.1 (Exemption from article 3.8) Evolution of the Services
Nokena-Plantfarm may at any time and as of right modify the Services, in particular add, modify or delete ranges, options or functions and improve their performance. The Plants are described online on the Plantfarm Website. It is up to the User to be vigilant regarding changes to the Services, which are applicable immediately in the context of all new Orders.
Regarding his Services in use, the User is informed by email and via his Management Interface of any substantial change likely to degrade said Services, at least seven (7) calendar days before the implementation of the evolution. However, changes to Third Party Products and emergencies (such as a security risk or legal or regulatory compliance) may result in immediate changes to Services. Subject to the article “Specific conditions for Consumers”, in the event of changes degrading a Service in use (withdrawal of functionality, reduction in performance, etc.), the User may terminate said Service by registered letter with acknowledgment. of receipt or by email, within thirty (30) days of the implementation of the change.
12.2.2 (Exemption from article 6.1) Price of the Services
The prices of the Services billed to the User are those in effect at the time of billing, as published on the Plantfarm Website in tax-free (TF) format. Prices are also communicated on simple request addressed to Plantfarm Support. Unless otherwise stipulated, prices are in euros, or calculated in cryptocurrencies against the euro.
Depending on the type of Services, Nokena-Plantfarm offers different prices which can be associated, depending on the case, with a period of commitment and/or a specific billing method. When for the same Service, several prices are available, the User selects the one of his choice at the time of the Order.
However, some Services may be intended only for professional use, for customers considered to be traders within the meaning of the Commercial Code. The prices of these Services are only available in tax-free (HT) format. Unless specifically provided for pricing, the price of the Services includes the cost of acquiring licenses and rights to use the tools, software and Operating Systems used by Nokena-Plantfarm and/or, where applicable, made available to the User within the framework of services. It is up to the User to acquire and discharge any license or right of use necessary for the exploitation of the Content he uses as part of the Services. The methods for calculating the prices of the Services and the units of work are defined on the Plantfarm Website and in the applicable Special Conditions. Each unit of work started is invoiced and due in full. It is up to the User to take cognizance of it before placing an order. Certain Services give rise to additional installation or commissioning costs.
12.2.3 (Derogation from article 6.2) Price change
Nokenchain-Plantfarm reserves the right to modify its prices at any time. Price changes are applicable immediately to any new Order. For the Services in use, in the event of a price increase, the User is informed with a notice period of one (1) month by email. In this case and subject to price increases resulting from unforeseeable circumstances within the meaning of article 1195 of the Civil Code, the User has, from the entry into force of the modification, a period of four (4 ) months to terminate the affected Services without penalty by registered mail with acknowledgment of receipt or via the form provided for this purpose in its Management Interface.
12.2.4 (Exemption from article 6.5) Default and late payment
In the event of default or late payment, including partial payment, the User is liable for late payment penalties due the day following the payment deadline, and the interest rate of which is equal to three times the payment rate legal interest. In addition, any default or late payment (even partial) of sums due by the User in performance of the Contract, persisting for more than four (4) calendar days after notification of default or late payment sent to the User by email, entails as of right and without the need for additional notification or formal notice (a) the immediate payment of all sums remaining due by the User under the Contract, regardless of the method of payment provided, and (b) the possibility for Nokena-Plantfarm immediately and without notice to suspend all or part of the User’s Services (including those which have been paid), to refuse any new Order or renewal of Services, and to terminate the Contract in whole or in part.
In accordance with article L121-21 of the Consumer Code, the lump sum compensation for recovery costs of forty (40) euros payable by Professional Users in the event of late payment, as provided for in article 6.5 below. above, is not applicable to Users having the status of Consumers. However, under Article L111-8 of the Code of Civil Enforcement Procedures, Consumer Users may be claimed for any recovery costs undertaken in the context of legal proceedings having an enforceable title.
12.2.5 (Derogation from article 10.4) Contractual documents
The Contract consists of the Terms of Service/Use which constitute the entire Contract between the User and Nokena-Plantfarm, excluding in particular the General Terms of the User and all other documents, agreements or previous discussions.
Nokena-Plantfarm may modify the Terms of Service/Use at any time as of right. These modifications are immediately applicable to all new Orders. Regarding his Services in use, the User is notified by email and in his Management Interface of any modification of the Terms of Service in force. The said changes only come into force thirty (30) calendar days after sending the aforementioned notification. However, changes to Third Party Product Conditions and legal or regulatory compliance may occur immediately to the extent that Nokena-Plantfarm does not control them. In accordance with article L224-33 of the Consumer Code, the User can terminate the affected Services by registered mail with acknowledgment of receipt or via the interface provided for this purpose in his Management Interface, within a maximum period of four (4) months from the entry into force of the new Terms of Service.
12.2.5 (Derogation from article 11.1) Jurisdiction
IN THE EVENT OF A DISPUTE WITH A USER, EXPRESS JURISDICTION IS ATTRIBUTED TO THE COURT OF THE PLACE OF RESIDENCE OF THE DEFENDANT, IN ACCORDANCE WITH ARTICLE 42 OF THE CODE OF CIVIL PROCEDURE, OR, AT THE LATTER’S CHOICE, AT THE PLACE OF ACTUAL DELIVERY OF THE MATTER OR OF THE PLACE OF PERFORMANCE OF THE SERVICE, IN ACCORDANCE WITH ARTICLE 46 OF THE CODE OF CIVIL PROCEDURE.
