ARTICLE 1 - Scope of application
These General Terms and Conditions of Sale unreservedly apply, without restrictions, to any purchase of Services (the “Services”) offered by the company “Sky Computing” (the “Seller”) to professional customers (“Customers” or the “Customer”), on its website at the address thinkNtest.com The main characteristics of the Services are presented on the website thinkNtest.com The Customer must read these Terms and Conditions before placing an order. The Customer is solely liable for any choice and purchase of a Service. These Terms and Conditions apply, with the exclusion of any other terms and conditions, including those that apply to other marketing chains for the Services. These General Terms and Conditions of Sale can be accessed at any time on the Seller’s website and upon request to the latter and shall prevail, if applicable, over any other version or contradictory document. In accordance with the French Data Protection Act (“Informatique et Libertés”) of 6 January 1978, strengthened and supplemented by the GDPR (General Data Protection Regulation), which came into force on 25 May 2018, the Customer has the right, at any time, to access, rectify, object and delete their personal data, as well as the right to data portability, by sending a letter, with proof of identity to: “Sky Computing” Simplified joint-stock company (S.A.S. under French law) with capital of €15,000 10 rue du Plateau des Glières 42000 SAINT ETIENNE, France The Customer warrants that it is aware of these General Terms and Conditions of Sale and that it accepts them, either by checking the dedicated box during the online order procedure, or when validating the sales proposal sent by the Seller. Unless proven otherwise, the data recorded by the Seller is proof of all transactions between it and the Customer. The Customer acknowledges that it has the legal capacity to contract and acquire the Services offered by the Seller. As these General Terms and Conditions of Sale may undergo subsequent changes, the version that applies to the Customer’s purchase is that in effect on the date the order is placed.
ARTICLE 2 - Orders
Sales of Services offered by the Seller shall only be honoured following compliance with the procedure described below: * The Customer must contact the Seller via the latter’s website or by email or telephone. At this time, the Customer must inform the Seller of the Services it wants to acquire. * The Customer is then invited to confirm its basket in the event of an order via the Seller’s website or to validate in writing the sales proposal sent by the Seller by issuing an order, with the payment of the requested sums. It is specified that the Customer is not automatically registered, the Seller reserves the right to verify the information provided by the Customer. Consequently, the Seller will be free not to validate the Customer’s registration if the information provided is not correct. * Subject to the reservations detailed in the aforementioned second step, the Seller will confirm acceptance of the Customer’s order and will activate their account, opening access to their order for Services. * The Customer wishing to benefit from the Seller’s Services can then access their personal account on the Seller’s website, entering their username and password. It is specified that the Customer will automatically be requested to accept these General Terms and Conditions of Sale in advance. The Customer can check the details of their order, the total price and correct any errors before confirming their acceptance (Article 1127-2 of the French Civil Code). Contractual information is provided in French. The sale will only be considered final and, consequently, validated by the Seller after the Customer has been provided with the Seller’s confirmation of acceptance of the order, by email and after the latter has collected the full price due. Any order placed with the Seller is tantamount to the establishment of a remote contract. The Seller reserves the right to cancel or refuse any order from a Customer with whom there is a dispute relating to the payment of an earlier order.
ARTICLE 3 - Prices
The Services offered by the Seller are provided at the prices in force on the website thinkNtest.com or which are available upon request to the Seller. Prices are listed in Euros, exclusive of tax and inclusive of tax when VAT is applicable. These prices are firm and cannot be revised during their validity period, as indicated on the website or on the price list provided by the Seller. The latter has the right, outside this validity period, to change the prices at any time. It is specified that the Seller does not intend to grant its customers any discounts in terms of quantity or quality. An invoice mentioning the applicable VAT shall be drawn up by the Seller and sent to the Customer upon delivery of the Services ordered. This can also be accessed on the “my account” section of the website.
ARTICLE 4 – Prices - Payment terms
For the fixed subscription, the price must be paid monthly in cash, in advance by bank transfer. For sums due that are indexed to the Customer’s actual consumption, they must be paid by the 5th of the month following the one for which the consumption is due, by bank transfer. If the full price has not been paid in advance under the conditions outlined above, the Seller shall not be required to provide the Services ordered by the Customer. Payments made by the Customer shall only be considered final once the sums due have actually been collected by the Seller. It is specified that the Customer, for the Services provided by the Seller, will have a storage space for its data in the cloud, the capacity of which will vary depending on the subscription taken out. The Customer will be invoiced for this data storage space, even if their main subscription comes to an end, in the event they continue to use this storage space.
ARTICLE 5 – Provision of the Services
The Services ordered by the Customer shall be provided within 48 (FORTY EIGHT) hours (business days) and 7 (SEVEN) days (business days) from the final validation of the Customer’s order, under the terms and conditions set out in these General Terms and Conditions of Sale. In the event of a specific request from the Customer regarding the terms of provision and delivery of the Services, duly accepted in writing by the Seller, the related costs shall be subject to specific and additional invoicing, validated in advance by the Customer. If there are no reservations or complaints expressly issued by the Customer upon acceptance of the Services, they will deemed to be compliant with the order, in terms of quality and quantity.
ARTICLE 6 - Right of withdrawal
For professional customers, as this sale is considered an online sale, the provisions relating to the right of withdrawal shall not apply.
ARTICLE 7 - Liability of the Seller - Warranty
The Customer is informed that the Seller’s warranty does not cover: - Abnormal or non-compliant use of the Services. - Defects and their consequences linked to any use that does not comply with the usage instructions or the intended use of the Service. - Defects and their consequences related to a force majeure event or which are the fault of the Customer or a third party. - The results of the Services used by the Customer. - The availability of the Services. The Seller cannot guarantee that the Services will operate without interruption, nor operational errors as the Seller only has a best-efforts obligation in this respect. In any event, the Customer’s subscription shall be automatically extended for the period during which the Services were unavailable, as noted by the Seller, without any additional cost. - The content posted online. The Seller is solely liable for the content posted online when using the Services. It is forbidden to post online any content that disrupts public order or which breaches the rights of a third party. - Data loss. The Customer remains solely liable for any data loss as well as any abnormal or unauthorised use of the stored content. The Customer is reminded that the Services provided by the Seller are only decision-making tools and may not impose a performance obligation on the Seller with regard to the relevance of the resulting decision implemented by the Customer. As such, the Seller’s performance obligation can only be binding for the Services provided to the Customer that have been ordered by the latter. Upon the expiry of the subscription to the Services taken out by the Customer, the subscription will be automatically extended for the period required to complete any on-going operations initiated by the Customer before this expiry date. The Customer will be invoiced for this extension in proportion to the time elapsed until the operation is completed, based on the costs for the subscription that has expired. The Seller also guarantees, in accordance with the legal provisions and without any additional payment, the Customer against all hidden defects resulting from a defect in the design or provision of the Services ordered. In accordance with the legal provisions, the Seller reminds the Customer of the existence of the following warranties: Legal warranty for hidden defects: Article 1641 of the French Civil Code: “The Seller must provide a warranty for hidden defects involving the item sold, rendering it unfit for its intended use, or that restrict this use so much that the buyer would not have bought it, or would have paid a lower price, had they been aware of the defect.” Article 1648 of the French Civil Code: “Any action due to critical defects must be taken by the buyer no later than two years after the defect has been identified.” In any event, and should the Seller be held liable hereunder, this liability shall be limited to direct damages, excluding any indirect damages and any compensation to be paid by the Seller shall be limited to the amounts paid by the Customer for one year of execution of these Terms and Conditions.
ARTICLE 10 - Data Protection
The personal data of the Customer (or its representatives) sent to the Seller shall be used by the latter for processing and managing the Customer’s order. Personal Data is collected in accordance with Article 6.1 b) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and the free movement of this data, repealing Directive 95/46/EC. The Seller is the sole recipient of the data. However, the data may be disclosed to third parties for the Seller to comply with an injunction from legal authorities. This data is retained for the duration of commercial relations between the Customer and the Seller and for a period of three (3) years thereafter for commercial prospecting purposes. The data may be retained for a longer period to fulfil a legal or regulatory obligation or to exercise a right, for the time required to fulfil the obligation or exercise the right in question. The natural person whose personal data has been disclosed by the Customer to the Seller, and who can provide proof of their identity, can exercise their right to access, rectify and/or delete their personal information contained in the Seller’s databases, by letter sent to the latter at their registered office. They also have the right to restrict the processing of their personal data, to have it deleted, the right to data portability, to withdraw their consent as well as the right to lodge a complaint with the French Data Protection Authority (CNIL). They may also object to their personal data being used for prospecting purposes and in general to the processing of their personal data for legitimate reasons. They may give general or specific instructions respectively to a trusted third party certified by the CNIL or to the Seller, relating to the retention, deletion and disclosure of their data after their death. They may designate a person responsible for executing these instructions and modify them at any time. If no instructions are given during their lifetime, their heirs have the right to exercise certain rights, in particular the right to access the data.
ARTICLE 11 - Intellectual property
The content of the website thinkNtest.com as well as the Services provided to the Customer are and shall remain the property of the Seller and its partners and are protected under French and international intellectual property laws. Any total or partial reproduction is strictly forbidden and may constitute a copyright infringement.
ARTICLE 12 - Force majeure
The Seller and the Customer may not be held liable if the late or non-fulfilment of any of their obligations, as set out herein, is a result of a force majeure event, within the meaning of Article 1218 of the French Civil Code and French case law.
ARTICLE 13 - Applicable law - Language
These General Terms and Conditions of Sale and the resulting transactions are exclusively governed by and subject to French Law. These General Terms and Conditions of Sale are drafted in French. Should they be translated into one or more foreign languages, only the French text shall prevail in the event of a dispute.
ARTICLE 14 – Disputes
All disputes that may arise between the Parties concerning these Terms and Conditions, their validity, interpretation, execution or termination shall be subject to mediation before any legal action is taken. The Parties hereby irrevocably agree to entrust this mediation assignment to the National Chamber of Mediation Practitioners (CNPM), located at 23 rue de Terrenoire, 42100 SAINT-ETIENNE, France. The CNPM will be contracted, upon simple request, by the most diligent Party. The CNPM will select one or more mediators to be approved by the Parties, depending on the size and complexity of the case. Should the Parties disagree over this proposal, it is already agreed that the choice of mediator(s) shall fall, as a last resort, to the CNPM itself, with the Parties waiving any recourse against this appointment. The Parties agree to comply with the Mediation procedure, which will be decided by the appointed mediator(s). The Parties undertake to participate in the various meetings organised by the mediator(s) and to respond promptly to all summons and requests sent by the latter. The Parties may be assisted by their lawyer. In general, the Parties undertake to take part in the mediation in good faith. They undertake to respect the confidentiality required for this procedure as well as any related remarks, acts, documents, etc. The agreement signed by the Parties at the end of the mediation procedure may be submitted, at the initiative of one or both of the Parties, for approval by a judge to give it the force of res judicata. The mediator(s)’ fees, as well as the costs incurred by the mediation procedure shall be borne equally by the Parties, unless they have reached a more suitable agreement. Should the mediation fail or should it fail to reach a conclusion by the end of a period of two months from the first meeting, the Commercial Court of SAINT-ETIENNE shall have express jurisdiction.
ARTICLE 15 - Pre-contractual information - Acceptance by the Customer
The Customer acknowledges that, prior to placing an order and entering into the agreement, that they were informed, in a legible and comprehensible manner, of these General Terms and Conditions of Sale and all the information listed in Article L. 221-5 of the French Consumer Code, in particular the following information: - the essential characteristics of the Services, taking into account the means of communication used and the Service in question; - the price of the Services and associated fees; - should the agreement not be executed immediately, the date or time frame in which the Seller undertakes to provide the Services ordered; - information relating to the identity of the Seller, its postal, telephone and electronic contact details, and its activities, if they are not already apparent. - information on legal and contractual warranties and how they are implemented; - the possibility of resorting to mediation in the event of a dispute; - information relating to the right of withdrawal, termination conditions and other important contractual conditions. - the accepted means of payment. Any orders from a natural (or legal) person placed with the Seller implies full acceptance of these General Terms and Conditions of Sale and the obligation to pay for the Services ordered, which the Customer expressly accepts. The Customer shall refrain from making use of any contradictory document, which may not be binding on the Seller.