In these general conditions, the following terms with a capital letter, unless otherwise specified, shall have the meaning given to them by this Article, whether in the singular or plural:
- “Access Codes”: has the meaning set forth in Article 5.1.
- “Anomaly”: means a reproducible and documented design or construction defect, malfunction, lack of functionality, failure to achieve an expected performance, etc. with respect to the Platform.
- “Blocking Anomaly”: means any Anomaly that makes it impossible to use the Platform in its entirety.
- “Client”: means any person who can be qualified as a “professional” within the meaning of the liminary article (Article Liminaire) of the French Consumer Code.
- “Contract”: has the meaning given to it in Article 8.
- “Corrective Maintenance”: has the meaning given to it in Article 4.2.
- “Date of subscription”: has the meaning given to it in Article 5.1.
- “Documentation”: has the meaning given to it in Article 3.1.
- “General Terms and Conditions” or the “GTC”: means these general terms and conditions of sale and use.
- “Intellectual Property Rights”: has the meaning given to it in Article 14.
- “Maintenance”: has the meaning given to it in Article 4.
- “Major Anomaly”: means any Anomaly that makes it impossible or significantly degrades the operation of certain functionalities of the Platform that have been subscribed to by the Client.
- “Minor Anomaly”: means any Anomaly that does not prevent the operation of one or more functionalities of the Platform (that have been subscribed to by the Client) and that does not significantly degrade one or more of such functionalities, but that requires the use of an unusual procedure.
- “Party”: means individually the Client or the Provider; the Client and the Provider together being referred to as the “Parties”.
- “Platform”: refers to the software as a service, developed by the Provider allowing to optimize the quality of applications developed in no code.
- “Progressive Maintenance”: has the meaning given to it in Article 4.3.
- “Provider”: means the company NOCODE:NOHACK, a simplified joint stock company (Société par Actions Simplifiée), with capital of € 1,440, with its registered office at 256 rue Vendôme, 69003 – Lyon, and registered with the Lyon trade and companies register under 907 993 190.
- “Services”: refers to (i) the license and (ii) the Maintenance of the Platform provided by the Provider.
- “User”: has the meaning set forth in Article 10.
- “Website”: means the website is accessible through the following link: www.ncScale.com.
- “Working Time” or “Hour”: means any day period of sixty (60) minutes between 9:00 a.m. and 5:00 p.m.
- “Working Day” or “Day”: means any day other than a Saturday, Sunday, or holiday.
- “Workaround”: means any temporary curative action to resolve an Anomaly to restore the Platform, offered by the Provider, while awaiting a Definitive Solution.
In accordance with Article L. 441-1 of the French Commercial Code, these General Terms and Conditions constitute the sole basis of the commercial relationship between the Parties. The purpose of these GTC is to define the conditions under which the Provider provides the Client with the Services.
The General Terms and Conditions apply, without restriction or reservation, to all Services subscribed via the Website.
The Client is required to read these General Terms and Conditions before purchasing any Product on the Website. The General Terms and Conditions are accessible by hyperlink on each page of the Website. The Client is invited to download and/or print the GTC and keep a copy. The Client is informed that these General Terms and Conditions may be modified at any time and without prior notice; the latest version in force being the one accessible on the Website.
Any purchase of Products via the Website implies acceptance without restriction or reservation of these GTC by the Client, who is deemed to have full knowledge of them. The GTC shall apply to the exclusion of all other conditions which shall be unenforceable against the Provider, in particular the Client’s general conditions of purchase, even if the Provider has knowledge of them.
The Provider reserves the right to cancel or restrict any subscription of the Services (i) in the event of a breach of these GTC, or (ii) if there is any previous or ongoing dispute with the Client, or (iii) if the Client is a competitor of the Provider.
In accordance with the regulations in force, the Provider reserves the right to derogate from certain clauses of these General Terms and Conditions, depending on the negotiations conducted by the Client, by establishing special terms of sale.
Subject to the terms and conditions of these GTC, and the Client’s compliance therewith, the Provider grants to the Client for the term set forth herein, a limited, exclusive, personal, non-transferable, non-sublicensable revocable license, to use the Platform subject to the functionalities to which the Client has subscribed.
In this respect, the Client is informed that the Platform has various functionalities described on the Website, some of which are paid, and others are free. The Client expressly acknowledges and accepts that the license to use the Platform will only allow them to access the functionalities of the Platform that they have subscribed to via the Website and subject to the payment of the related price, where applicable.
The license also includes any documentation or media associated with the Platform and its use, supplied by the Provider to the Client (“Documentation”).
The Client shall use the Platform for its internal business purposes only, in accordance with the Documentation, any reasonable instructions of the Provider, the terms of these GTC, as well as statutes, laws, and regulations.
The Client shall not copy or reproduce the Platform except with the prior written consent of the Provider. The Client shall not, and shall not assist, enable, or otherwise permit or allow any third party to, (i) alter, adapt, modify, translate, create derivative works of, (ii) decompile, disassemble or otherwise reverse engineer or attempt to derive any methods, algorithms, interfaces, ideas, solutions, structures or other information embedded or used in, (iii) rent, lend, loan, lease, sell, encumber, distribute, sublicense, or otherwise permit use of or access to by third parties, (iv) remove, alter, or obscure any proprietary or restrictive notices affixed to or contained in, and (v) circumvent or attempt to circumvent any technological protective measure contained in or supported by, the Platform or any copy, portion, extract or derivative thereof.
In addition, the Client shall not provide, disclose, display, or otherwise make available the Platform or any copy, portion, extract, or derivative thereof, or permit use of any of the foregoing by or for the benefit of any third party.
Any other use of the Platform is not permitted without the prior written consent of the Provider, in their sole discretion.
4.1 Scope of the maintenance
For any subscription to functionalities of the Platform that are subject to payment, the Provider will provide the Client with a maintenance service on the Platform (“Maintenance”), which includes Corrective Maintenance and Progressive Maintenance as described hereinafter. The Maintenance covers only those functionalities expressly subscribed to by the Client, provided that the Client has subscribed to at least one paid functionality. If the Client does not subscribe to any paid functionality, no Maintenance will be provided. The Provider undertakes in particular to use their best efforts to provide the Client with a Workaround and/or a Definitive Solution as soon possible upon information received from the Client in this respect by the Provider. The Maintenance will be carried out by the Provider on Working Days, during Working Hours.
4.2 corrective maintenance
The Maintenance includes all corrective actions on the Platform under the conditions hereinafter defined (“Corrective Maintenance”), which shall be provided by the Provider on the functionalities subscribed to by the Client. Corrective Maintenance shall include: (i) all patches, alternatives, new versions, updates and upgrades that the Provider may propose with respect to the current version of the Platform; (ii) providing the Client with new versions of the Platform that the Client may implement; (iii) the correction of Anomalies (Blocking Anomalies, Major Anomalies and Minor Anomalies) under the conditions set forth below; (iv) new versions and corrections corresponding to new versions, intended to improve the functionality or performance of the Platform.
All questions and requests will be forwarded to the Provider. The Provider will assign a severity level (as defined below) to all tickets created by the Client. The level of severity, assigned by the Provider according to the Anomaly observed, will determine the order in which the tickets are processed.
In the event of the occurrence of an Anomaly, the Client shall make the request for intervention to the Provider by sending an e-mail to the following address support@ncscale. The Client undertakes to provide the Provider with all the details necessary for the Provider to fully understand the Anomaly.
4.3 Progressive maintenance
The Maintenance may include progressive support (“Progressive Maintenance”), which shall be provided by the Provider on the functionalities subscribed to by the Client. Progressive Maintenance refers to: (i) all developments, adjustments and parameter settings of specific interfaces, software, hardware, operating system, or database systems and (ii) new minor and major upgrades or enhancements to the Platform intended to provide enhanced functionality or performance.
4.4 Disclaimer of liability
The Parties agree that the provision of Maintenance is strictly subject to the following conditions: (i) the Anomaly emanates from the Platform and the functionalities subscribed to by the Client; (ii) no kind of modification, adaptation or alteration has been made to the Platform; (iii) the Client has not made an incorrect or misuse of the Platform or a use contrary to instructions or recommendations of the Provider or a use against the purpose of the Platform; and (iv) the Client has not permitted or authorized anyone other than the Provider to intervene on the Platform for any reason whatsoever. In such cases, the Provider reserves the right not to provide the Maintenance or to charge additional fees for the provision of the Maintenance.
The Client generally agrees to cooperate fully with the Provider and their personnel to enable the Provider to provide the Maintenance. The Provider undertakes to provide and implement all the technical, material and/or human resources reasonably necessary for the performance of the Maintenance.
5.1 access to the services
Access to the Services (including the free functionalities of the Platform) is subject to the Client’s subscription via the website, which includes the following steps:
1. The Client must send to the Provider a request to create a personal account via the Website. To this end, the Client must complete the personal information requested on the Website and validate the form so that it can be sent to the Provider. On this occasion, the Client chooses the functionalities they want to subscribe to. If they subscribe to at least one paying functionality , the Client will have to enter their credit card details (Visa, MasterCard, American Express and other credit cards) . The Client is also invited to create a log-in password in a certain format indicated on the Website.
2. The Provider will then send to the Client a link to the e-mail address they have entered on the Website, in order to confirm their e-mail address and finalize their subscription. The date the Client validates their subscription by clicking on the said link is considered as the effective date of subscription of the Client (“Date of subscription”). The Client may then access their personal account by entering their e-mail address and password (hereinafter the “Access Codes”).
If these steps are not respected or in case of rejection of the Client’s subscription request by the Provider, the Client will not be able to access any Services (even the free functionalities of the Platform), without any compensation being able to be claimed by the Client for this reason.
5.2 Personal account management
The Client acknowledges that they may only have one personal account allowing them to access their personal space and the Services. The Access Codes are strictly personal and confidential. The storage and use of these Access Codes are the sole and exclusive responsibility of the Client. The Client undertakes not to divulge them to anyone, in any form whatsoever. All actions carried out on the personal space with the Access Codes shall be deemed to have been carried out by the Client who received these Access Codes. It is the responsibility of the Client to manage the security of his personal space, and to respect the conditions of use.
The Client undertakes to inform the Provider without delay in the event of loss, theft, misappropriation, or any unauthorized use of their Access Codes, as soon as they become aware of them, in order to request that the Provider block them. Upon receipt, the Provider shall block all access to the personal space via the Client’s Access Codes. A written confirmation of the blocking of the Access Codes will be sent by e-mail to the Client. In the event of loss, theft, or fraudulent use of one of their Access Codes, the Client shall be solely responsible for any harmful consequences, to the exclusion of any liability on the part of the Provider.
The Provider reserves the right to suspend, restrict access or block the Client’s Access Codes if the Provider is informed of any abnormal use or if the Provider has legitimate reasons to believe that the Access Codes have been hacked or that the use of the personal space is fraudulent, or more generally that the use of these Access Codes or the personal space is contrary to the provisions of these General Terms and Conditions.
The Services are supplied at the prices in force on the Website at the time the subscription is registered by the Provider, it being specified that certain functionalities of the Platform are provided for free. In case of subscription to new functionalities during the term of the Contract (i.e., after registration of the Client’s subscription), the prices applicable to these functionalities will be those appearing in the price list in force on the day of the subscription to the said functionalities. The Provider reserves the right to modify the prices at any time. The prices of the functionalities are expressed in Euros for Clients whose IP address is located within the Euro area, or U.S. Dollars for Clients whose IP address is located outside the Euro area, net and exclusive of VAT. VAT will be charged to the Client at the rate applicable on the day of the order. If, by virtue of any law or regulation, or any other applicable regulation, the payment of any amount due under these GTC gives rise to any tax, duty or levy, the Client agrees to increase the amount payable so that the Provider receives the amount it would have received in the absence of such tax, duty, or levy.
Provided that they subscribe to at least one paying functionality, the Client shall pay each month M, the price corresponding to the Services provided during the previous month M-1. Any month started will be fully due by the Client, notwithstanding any termination of the Contract during a month. Payment shall be made by:
- direct debit to the Client’s bank account. To this end, the Client will communicate to the Provider a direct debit authorization in the form of a SEPA mandate; or
- credit card: Visa, MasterCard, American Express and other credit cards
Corresponding invoices will be sent via e-mail to the Client at the address indicated by them at the time of subscription. Any late payment is automatically subject to a penalty equivalent to three (3) times the applicable legal interest rate in effect at the due date, and to a fixed allowance for recovery cost forty (40) euros. In such case, the Provider may also at their sole discretion upon written notice, suspend the provision
The contract of supply of Services subscribed by the Client, taken in application of this GTC (the “Contract”), comes into force from the Date of subscription, for an indefinite period. Either Party may terminate the Contract at any time (i) via the dedicated tab on the Website for the Client, and (ii) via the Website or by e-mail sent to the Client, for the Provider. The termination shall be effective in month M+1 following month M in which a Party has notified the termination of the Contract to the other. The Client acknowledges that any month started will be fully due by them.
These GTC are also applicable to any User for the duration of their navigation on the Website.
In the event of a breach by a Party of their obligations hereunder, the other Party may terminate the Contract ten (10) days after a formal notice has remained without effect. In accordance with Articles 1224 and 1225 of the French civil code, the following breaches likely to lead to the termination of this Contract: breach of the license scope defined in Article 3.1, failure to use the Platform in accordance with the terms of Article 3.2, breach of the Client’s obligation to cooperate in accordance with Article 4.5, failure to pay in accordance with Articles 6 and 7, breach of the confidential obligations set out in Article 13, breach of the Intellectual Property Rights of the Provider as provided for in Article 14, assignment of the Contract in breach of Article 18, and more generally any serious breach in the performance of the obligations hereunder.
All users of the Website, whether they are Client or third parties (“User”), undertake to use the Website in compliance with these GTC, in good faith and in accordance with the legislation and regulations in force. The User guarantees that they are of legal age and able to understand these GTC. Any fraudulent, abusive, illicit, or dishonest use of the Website by the User is strictly forbidden. In particular, the User may not (i) reproduce, distribute, publicly communicate, transform or modify the Website or their contents without the Provider’s prior written consent, (ii) engage in any activity that is unlawful, fraudulent, contrary to these GTC, to the regulations in force or to good faith, or that may prevent or hinder the proper use of the Website, (iii) insert them into Internet pages, platforms, forums, chats, blogs or any third party social networks, (iv) link or reproduce the Website or its content on websites, platforms, forums, chats, blogs or any social networks in a way which may be contrary to the law, offensive or infringing human dignity, fundamental rights, the Provider and in particular its image or reputation, or in a way which may be considered as constituting an offense. Third party websites, platforms, forums, chats, blogs, or social networks with a link to the Website must clearly state that they are not authorized by or under the control of the Provider and that the link does not imply or suggest any association between the Provider and any third-party website, platform, forum, chat, blog or social network linking to the Website. Regardless, any link to the Website shall be made directly to the home or open a page of the Website by clicking on the URL of the Website and shall encompass the entire screen of the home or start page of the Website.
The Platform is licensed exclusively “as is”. The Provider expressly disclaims any express, implied, or statutory warranty relating to any aspect of the Platform, including but not limited to any warranty of merchantability or fitness for a particular purpose. The Provider does not warrant that the Platform will operate uninterrupted, securely, accurately, timely, virus-free, or that the related Documentation is free from errors or omissions. The Website and the Platform is used via the internet. The User and the Client acknowledge and agree that the Provider does not operate or control the internet and that (i) viruses, computer worms, Trojan horses or other unwanted data or software, or (ii) unauthorized users (e.g., hackers) may attempt to access and damage the Client’s data, computers, or networks. The Provider shall in no way be held responsible for these activities.
12. LIMITATION OF LIABILITY
Subject to the applicable mandatory legal provisions, the Provider shall only be bound by an obligation of means in connection with the performance of their obligations under these GTC. The Provider shall in no event be liable for damages of any kind that may result from improper use of the Platform by the Client or use that does not comply with the provisions set out in Article 3.2. Likewise, the Provider shall not be held liable in the event of non-performance or poor performance of the Contract due to the act of a third party or to a case of force majeure.
It is agreed that the Provider shall in no event be liable for any special, indirect, or consequential damages including without limitation loss of opportunity to enter any contract or business, loss of profit or goodwill, loss of data, loss of brand image incurred by the Client hereunder. Except in the case of bodily injury, intentional or gross negligence, the total compensation due by the Provider to the Client for all damages incurred in the performance of these GTC shall not exceed the total amount paid by the Client for the Services. Subject to the applicable mandatory legal provisions, any liability of the Provider is excluded for any damage in connection with free functionalities or any free service.
By all necessary means, the Client undertakes to keep strictly confidential the information that they will receive from the Provider (including the specification on the Platform or name of Provider’s customers and partners), for the term of the Contract and a period of five (5) years after its termination for any cause. The Client will take all necessary measures to preserve the confidentiality of this information. In particular, the Client undertakes: (i) not to use, directly or indirectly for an industrial, commercial or research use, the information provided, except under a specific written agreement with the Provider; (ii) not to reproduce, totally or partially, the Platform and information if such reproductions have not been authorized beforehand by the Provider; (iii) not to publish or use this information for their own account or for the account of third parties.
14. INTELLECTUAL PROPERTY
The Provider remains the sole and exclusive owner of all intellectual property rights relating to the Website, the Platform, all the content contained therein (images, illustrations, sounds, texts, graphic elements, charter, newsletters, etc.), including all industrial property rights (trademarks, patents, designs, etc.), copyright, domain names, software rights, database producer’s rights, inventions, ideas, improvements, manufacturing, know-how, technology, trade secrets and all other intellectual property rights (“Intellectual Property Rights”). The Client does not benefit from and cannot claim any prerogative in terms of intellectual property under these GTC except for the rights granted herein, including the license provided in Article 3. No property rights of any kind whatsoever, and those relating to the Platform, are transferred to the Client under these General Terms and Conditions. The Provider also retains ownership of all developments relating to the Platform and may freely re-use any ideas, concepts, methods, know-how, or techniques relating to programming or data processing which are or will be discovered or developed while performing any services under these General Terms and Conditions. The Provider reserves all their rights to act against the Client or any third party including a User in the event of any infringement of the Intellectual Property.
Each Party undertakes to comply with the applicable regulations on the protection of personal data, and in particular the provisions of Law No. 78-17 of 6 January 1978 on information technology, files, and freedoms, as amended by Regulation (EU) No. 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (GDPR).
In the context of the provision of the Services, the Provider acts as the Client’s data processor under the terms and conditions set out in the data processing agreement attached hereto.
For the purposes of this Article, “Force Majeure Event” has the meaning given to it in Article 1218 of the Civil Code. In addition, the following shall be considered as Force Majeure: natural disasters, war, explosion, fire, flood, storm, earthquake, insurrection, terrorist acts, riots, civil unrest, rebellion, strikes, lock-out or industrial disputes other than strikes, any confinement measure resulting from a state of health emergency, involving the Party requesting the benefit of this Article. If a Force Majeure Event occurs which makes it impossible for one Party (the “Affected Party”) to perform their obligations to the other Party (the “Other Party”), the Affected Party shall not be liable to the Other Party and shall be relieved of their obligations to the extent that its ability to perform their obligations has been affected by a Force Majeure Event. If the consequences of the Force Majeure Event on the Affected Party make it impossible for that Party to perform a substantial part of their obligations under these GTC for a period of at least sixty (60) consecutive days, either Party may, by written notice, terminate the Contract either in part or in whole, with immediate effect and without liability to the Affected Party.
The Client acknowledges and expressly accepts that all or part of the Maintenance may be subcontracted by the Provider to any service provider of their choice or to any service provider who has been duly appointed by the Provider for the performance of the said Maintenance.
The Client may not sublicense, subcontract, assign or transfer, by contract, operation of law, or otherwise (including by a merger, consolidation, sale of assets, or a change of control) any of their rights and obligations under this Contract to any third party without the prior written consent of the Provider.
The failure or delay in exercising any of Provider’s rights or remedies hereunder shall not constitute a waiver of such right or remedy, nor shall it prevent or restrict the further exercise thereof or of any other right or remedy. No single or partial exercise of any such right or remedy shall preclude or limit any subsequent exercise of such right or remedy.
Unless expressly provided otherwise, these GTC constitute the entire agreement between the Parties.
21. APPLICABLE LAW-DISPUTE
Any dispute or difference relating to the provisions of the Contract and these GTC or in connection with it, its subject matter or relating to its formation (including disputes and differences of extra-contractual origin) shall be submitted to and interpreted in accordance with the provisions of French law, without regard to the principles of choice of law.
All disputes arising out of or in connection with the validity, interpretation, performance, non-performance, or termination of these GTC and the Contract shall be submitted to Lyon Courts which are explicitly granted jurisdiction, even in case of plurality of defenders or incidental claim.
22. CONTACT – NOTIFICATIONS
All correspondence to the Provider (including claims) shall be sent by email or by registered letter with acknowledgement of receipt, to the postal set out in Article 1, through the contact form via the Website or via e-mail at the following address support@ncScale.com.
All correspondence to the Client shall be sent by email or by registered letter with acknowledgement of receipt, to the postal and email addresses informed by them at the time of the subscription.