Terms and Conditions of Subscription
Terms of sales EN
The purpose of these Subscription Terms and Conditions (hereinafter the “CGA”) is to define the terms and conditions of Subscription to the Products and Services, applicable to any natural person, major and legally capable, having the status of consumer as defined by law and jurisprudence (hereinafter the “Customer”) which subscribes, on the website www.nearsens.com, to a Subscription proposed by the company NEARSENS, a simplified joint-stock company with a capital of 50,000 euros, whose registered office is located ZAC Saint-Philippe II-Quartier Des Templiers 400 Avenue de Roumanille – 06410 BIOT, registered in the Trade and Companies Register of Antibes under number 837 900 778, represented by its duly authorised legal representative for the purpose hereof (hereinafter “NEARSENS”). Hereinafter referred to individually as the “Party” or collectively as the “Parties”.
ARTICLE 1 – PRE-CONTRACTUAL INFORMATION FOR THE CONSUMER CUSTOMER
The Customer acknowledges having received communication of these CGA, prior to the Subscription Order, in a readable and understandable manner, and of all the information listed in article L. 221-5 of the French Consumer Code, and in particular the following information:
– The essential characteristics of the Subscription, as well as the technical prerequisites necessary for the use of the Subscription;
– Subscription prices (total and monthly prices);
– The date or the period within which NEARSENS undertakes to make the Subscription available to the Customer;
– Information on NEARSENS, its postal, telephone and electronic contact details and its activities;
– The absence of legal guarantee of hidden defects and legal guarantee of conformity, due to the fact that the Products are loaned and not sold to the Customer;
– Information on contractual guarantees and their implementation procedures;
– Information relating to the right of withdrawal (existence, conditions, time limit, procedures for exercising this right), the terms of termination and other important contractual conditions;
– the possibility of using a consumer mediator;
– The means of payment accepted.
ARTICLE 2 – DEFINITIONS
The following terms whether used in the singular or plural herein will always have the following definition:
Subscription: means any subscription to the Products and Services subscribed by the Customer within the framework of this agreement and detailed in the Order Confirmation;
Anomaly: means any malfunction of the Software Solutions incorporated into the Products and/or any malfunction of the Application.
Application: refers to the Nearsens application developed and published by NEARSENS, which holds the exclusive property thereof, allowing the Customer to access the Services;
Assistance: means the assistance services provided by NEARSENS to the Customer and consisting of advice and assistance in the use of the Product(s) and/or the Application;
Order: means the Subscription order, made by the Customer on the Site, specifying in particular the price and duration of the Subscription;
Contract: means these GCA and any appendix that are in addition to the General Conditions of Use of the Site and the Application;
Personal Data: means all types of information, data and content collected and processed in connection with the use of the Product(s) and/or Service(s) which, within the meaning of the French Data Protection Act of 6 January 1978 as amended and the Regulation (EU) 2016/679 of 27 April 2016, make it possible to designate or identify, directly or indirectly, a natural person;
Maintenance: means the services comprising the corrective, adaptive and scalable maintenance of the Software Solutions and/or the Application;
Products: refers to Nearsens connected products ordered and rented by the Customer as part of the Subscription. The Products are detailed and described on the Site, the Order Confirmation, and/or in the technical documentation (instructions for use, installation instructions, etc.) available online on the NEARSENS website.
- the services associated with the implementation of the Product that NEARSENS undertakes to provide to
Client to include:
- the configuration and commissioning service of the Product(s) and Software Solutions integrated with the Product(s);
- the support and maintenance services of the Application and Software Solutions integrated into the Products;
- the services provided by the Software Solutions integrated into the Product(s) and the Application connected to the Product(s):
- remote (cloud) and backup (eSIM) services
- remote monitoring services, concierge services, secure home delivery, etc. depending on what the Customer has subscribed to at the time of the Order.
Site: means the website www.nearsens.com on which the Customer makes the Order;
Software Solutions: refers to the software solutions integrated into the Products, developed by NEARSENS, which holds the exclusive ownership. The use of Software Solutions integrated into the Products is granted to the Customer in accordance with Article 18;
Third parties: means all persons (natural or legal person) other than the Parties.
ARTICLE 3 – ACCEPTANCE
CGAs are concluded between NEARSENS and the Customer wishing to subscribe to a Subscription offered by NEARSENS via the Application, and thus benefit from the Products and Services, for the duration of the Subscription. The CGA constitute a contract between NEARSENS and the Customer. Any subscription to a Subscription is subject to the acceptance and compliance of the CGA by the Customer. Any Order on the Site is subject to the acceptance of the CGA by the Customer by ticking the box provided for this purpose. By checking the CGA acceptance box in order to finalize an Order, the Customer acknowledges having read the CGA and having fully understood it and undertakes to respect its content.
NEARSENS reserves the right to amend the CGA at any time without notice. In case of modification, the CGA that are applicable to the Customer are those in force on the date of his Order.
In the event that one of the clauses of the CGA is null because of a change in legislation or regulation or declared as such by a final court decision, this cannot in any case affect the validity and compliance with the other clauses of the CGA.
The CGA are directly accessible on the Site by clicking on the “Terms and Conditions” tab on all pages of the Site. They are downloadable for free.
ARTICLE 4 – PLACING ORDERS
4.1 Products and Services Offered
The Site allows the Customer to subscribe to a Subscription, allowing him to rent, for a period of twenty-four (24) months (unless otherwise provided between the Parties), Products and to benefit from Services. The Customer may have the Leased Products delivered and benefit from the Services, in France or abroad (see Article 6 “Delivery”).
Each Product is accompanied by a descriptive sheet, just click on the Product to display its description. The Services are detailed on the Site.
The prices of the Subscription, including the Products and Services, are valid as long as they are visible on the Site, within the limit of the stocks of Products available.
Errors or modifications may exceptionally exist, particularly in the case of simultaneous orders of the same Product by several Customers, as part of their subscription to a Subscription. In the event of unavailability of the Product after placing your Order, NEARSENS shall inform the Customer by email or telephone as soon as possible, by offering to either order another Product presented on the Site as a replacement, or cancel your Order.
4.2.1Selection of Products and Services
The Customer visits the Site, chooses the Subscription to which he wishes to subscribe, and in particular the Products he wishes to rent and the Services he wishes to benefit from.
By clicking on the Product or Service, the Customer accesses its description sheet and selects it by clicking on “Add to cart”. The Customer is aware that the Services are offered as part of global offers (excluding remote monitoring).
The Customer may access his shopping basket where the selected Subscription is displayed, including the Products and Services chosen (hereinafter the “Shopping Cart”).
The Customer may choose to continue his purchases or finish his Order.
The Customer can consult its selection by clicking on “Shopping Cart”, and will be able to access in particular the description of the selected Subscription, the Selected Product(s), the service(s) it will benefit from, the duration of the Subscription, the overall and monthly price of the Subscription.
4.2.2 Finalization of the Order
The completion of the Order requires the Customer to have an Account (hereinafter the “Account”). To create an Account, the Customer must have a valid email address. The Customer can create an Account during the Order process. The Customer is then asked to fill in all the required information in the form. Mandatory information is indicated with an asterisk. The Customer accesses a summary of the delivery and billing address, he is asked to specify if the addresses are different and, if necessary, to make the changes accordingly.
Once the selected Products and Services have been placed in the Shopping Basket, the Customer can validate his Shopping Basket by clicking on “Proceed to order”. He then accesses the summary of his order and can:
– Either click on “I have an account”: he then enters his username and password;
– Either click on “New customer” and then create an Account according to the above procedure.
The Customer then chooses the shipping method of the Order, as specified in article 6 hereof as well as its method of payment.
The Customer then has access to the summary and the total price of his Order. It is up to the Customer to check that there are no errors, after which he confirms that he has read and accepted these Terms and Conditions by checking the box “I accept the NEARSENS General Conditions of Sale”.
At any time, before making the payment, the Customer has the option to return to the previous pages to correct any errors.
The Customer can then click on “Order”. The Order is saved and a summary of the Order is displayed as well as a link to the Customer Account.
Once the payment of the total price has been made, an email acknowledging receipt of the Order is sent to the Customer by NEARSENS (hereinafter “Order Confirmation”).
The subscription will not be considered final until after sending to the Customer this Order confirmation email by NEARSENS.
The Customer may have access to his Order and his invoice on the Site from his Account.
The Customer accepts the use of e-mail for the transmission of the information it requests concerning the conclusion and/or performance of the Services and/or CGA.
ARTICLE 5 – FINANCIAL CONDITIONS
The price of the Subscription, Products and Services included, as well as any specific and/or distinct prices, are displayed on the Site in the corresponding description. The prices are indicated in euros, all taxes included, the VAT applicable, is that on the date of the Order. The price is that in force on the day of the Order.
Unless otherwise stated, the price is exclusive of delivery and shipping of the Products.
5.2 Payments and Late Payments
The Customer pays the price of the Subscription monthly. Payment is made by credit card on the Site. Credit and debit cards are accepted. The Customer undertakes to update his bank details so that the monthly payments can be debited.
The Customer will be redirected to the payment page of the partner payment provider. The banking data entered by the Customer on this page is encrypted. They are collected and processed only by the payment provider, in compliance with the Regulations applicable to the protection of personal data. The payment will be made in accordance with the general conditions applicable to the payment provider’s secure payment service, accessible on its website.
In the event that the debit of the Price proves impossible, for whatever reason, the Customer will be invited to regularize its situation, by e-mail sent by NEARSENS. If the situation persists, NEARSENS will inform the Customer by registered letter with acknowledgement of receipt (by post or electronic means) of the fact that without regularization on its part within seven (7) days from the receipt of said letter, Any Service would be suspended. In the event that, despite this, the situation was still not regularized in time, a new registered letter with acknowledgement of receipt will be sent to the Customer by NEARSENS, indicating that in case of absence of regularization, the CGA will be automatically terminated for fault of the Customer. The latter will then be immediately liable for all amounts already due, as well as those remaining until the end of the Subscription, and its access to the Services will be immediately cut off and the return of the Products will be organized between the Parties, at the Customer’s expense.
ARTICLE 6 – DELIVERY – INSTALLATION OF PRODUCT(S)
6.1 Delivery Date
The estimated delivery times of the Product(s) are indicated in the Order Confirmation.
Any event likely to have an influence on the delivery and installation of the Order will be immediately brought to the Customer’s attention by NEARSENS.
6.2 Delivery Location – Installation
The Product(s) will be delivered to the place provided for in the Order Confirmation.
NEARSENS cannot be held responsible for the impossibility of delivering the Product in case of erroneous information provided by the Customer on its delivery details.
6.3 Delivery Modes
The delivery methods offered by NEARSENS may be as follows:
– Colissimo: delivery within an indicative period of 2 days from Monday to Saturday;
– Colissimo international expert: delivery within an indicative period of 1 to 5 days depending on the destination
– DHL domestic express: delivery within an indicative period of 1 day from Monday to Saturday,
– DHL worldwide express: delivery within an indicative period of 1 to 5 days depending on the destination
The delivery method is specified in the Order Confirmation.
6.4 Apparent Package Defect
The Customer is required to check the apparent condition of the package during delivery.
At the time of delivery of the package, if the Customer finds that the package containing the delivered Product is damaged or opened, the Customer will be entitled to:
– refuse the package and notify the delivery person of this refusal;
– make an observation to the delivery person.
If, at the opening of the package, the Customer finds a damage, he may make a written complaint to the carrier no later than the first business day following receipt of the Product (hereinafter the “Claim Period”)
In the absence of a reservation issued at the time of delivery or within the Claim Period, the Product may no longer be the subject of the claim procedure to the carrier, as described above, and will then be considered accepted without reservation by the Customer.
6.5 Apparent Defect of the Product
In the event that the Customer finds a defect in the quality and/or conformity of the Product delivered by NEARSENS in relation to the Order, a request for exchange of the Products for non-compliance may be sent to the following address [email protected], within fourteen days (14) days from receipt of the Product. NEARSENS will bear the costs of return.
Beyond the deadline for a return or exchange, the Customer must send to NEARSENS, in writing to the following email address [email protected], a request for replacement in accordance with the Commercial Guarantee article.
6.6 Physical Installation of the Product
Unless otherwise provided between the Parties, NEARSENS will not physically install the Products.
It will then be up to the Customer to proceed alone with the installation of the Products, or if he wishes to call on any provider of his choice, and at his expense.
NEARSENS shall in no case be liable in the event of the Customer’s improper installation of a Product, or in the event of a malfunction of the Product due to the Customer’s improper installation of the Product.
6.7 Technical Documentation
The delivery and installation of the Product(s) will be carried out through the technical documentation associated with the Product(s), available online, on the NEARSENS website, on the page associated with each Product.
6.8 Transfer of risks
The risk of damage to the Product(s) shall be transferred to the Customer at the time of complete delivery by the relevant Product(s) carrier.
6.9 No Transfer of Ownership
The Product(s) are and will remain, at all times, the exclusive property of NEARSENS. The Customer has and will have no right, title or interest in the Products, except as expressly provided herein.
Packaging containing the Products is and will remain the exclusive property of NEARSENS. The Customer undertakes to keep them for the duration of the CGA. These packaging must be used by the Customer in case of return of the Products.
ARTICLE 7 – OBLIGATION OF CUSTODY OF PRODUCTS – OBLIGATION OF GOOD USE
The Customer must use the Product as a good father of the family, carefully and adequately in accordance with the technical documentation. The Customer shall use the Product under normal conditions of use and maintain it in good working order. The Product must be kept under optimum temperature conditions and the Customer must keep the QR Code and serial number present on the packaging, by any means. Any return of the Product, whether for a replacement request or at the end of the subscription, must be made in the original packaging in good condition or, failing that, in a packaging that guarantees the integrity of the Product. Otherwise, the Product may be invoiced by NEARSENS to the Customer for the amount of its new value.
The Customer undertakes to inform NEARSENS immediately of any anomaly found on the Product, whatever it may be. The Customer shall not make or cause to be made any modifications or repairs to the Product without the prior written consent of NEARSENS.
The Customer undertakes not to transfer the Product without the prior consent of NEARSENS. As the Customer is not the owner of the Product but has only legal custody of it, he is prohibited from selling it, lending it, subletting it, or making it available to a third party in any way. Otherwise, the Customer will be obliged to refund in full the value of the Product, notwithstanding any legal action which NEARSENS reserves the right to initiate.
The Customer must comply with and comply with all laws, ordinances and regulations related to the possession, use or maintenance of the Product. In this respect, as guardian of the thing, the Customer will be responsible for the damage caused to the Product. Any repair costs resulting from a lack of maintenance on the part of the Customer shall remain entirely at the Customer’s expense.
The Customer shall bear all risks of loss, theft, destruction, degradation and damage to the Product. Thus, in case of breakage, breakdown or degradation of the Product resulting from imprudence, negligence or fault of the Customer, the costs of repair of the Product will be borne by the Customer. If the Product is not repairable, the Customer shall be liable to NEARSENS for the entire value of the Product. The Customer undertakes to insure the Product against theft, loss and total or partial deterioration. Such insurance must cover at least the value of the Product. In case of theft, loss and deterioration of the Product, the Customer shall inform NEARSENS as soon as possible, by any means. In the event of loss, theft, deterioration, alteration or destruction of the Product, the Customer must return to NEARSENS the amount of compensation received by its insurance under the Product leased, in so far as the latter is by no means the owner of the object but is the custodian of it.
ARTICLE 8 – PROVISION AND ACCESS TO APPLICATION
NEARSENS will make the Application available to the Customer. This will be made available within the time provided in the Order Confirmation.
Unless otherwise stipulated, the Subscription is deemed to begin on the day of this release.
NEARSENS will therefore create a Customer account on the Application, which will undertake to provide NEARSENS with all the information necessary to create its account within the time required by NEARSENS.
NEARSENS will communicate to the Customer an email indicating the login parameters (login and password) allowing him to access his account.
The username and password will be modifiable during the Customer’s first connection to his Account.
The Customer is informed that access to the Application will be subject to acceptance of the General Conditions of Use.
The Customer is also informed of the technical prerequisites necessary to be able to access the Application and use the Services, namely to have Internet access with sufficient speed or cellular network coverage (2G, 3G, 4G).
At the end of the CGA, access to the Application will be cut.
ARTICLE 9 – PROVISION OF THE TELESURVEILLANCE SERVICE
The Customer subscribing to a remote monitoring service with NEARSENS is informed that the remote monitoring service will be provided by the company (.), subcontractor of NEARSENS, Complying with the rules governing the certification of the alarm reception centre for the protection of personal data, staff training, system and data access rights and risk assessment. Under no circumstances will this remote monitoring service be provided by NEARSENS itself. This service may be purchased by the Customer via the NEARSENS application.
The Customer is informed of the technical prerequisites necessary to benefit from the Remote Monitoring Service. In particular, the Customer must have Internet access with sufficient speed or cellular coverage (2G, 3G or 4G), a mobile phone number and have acquired the necessary products from NEARSENS, Services that may not be used other than with the products provided by NEARSENS.
The Customer is also informed that the remote monitoring service is only available for premises located in metropolitan France.
At the end of the CGA, the provision of the remote monitoring service for the benefit of the Customer will end, except in case of continuation of the subscription or subscription to a specific commitment.
ARTICLE 10 – ASSISTANCE AND MAINTENANCE
NEARSENS is committed to providing Customer with standard Support and Maintenance of Software Solutions and/or Application.
The Customer may contact NEARSENS from Monday to Friday, from 9am to 6pm, excluding public holidays by telephone at the following number: +33 9 8008 3008 or by email at [email protected].
In case of Anomaly, NEARSENS will make its best efforts to correct it as soon as possible.
During the term of the Agreement, NEARSENS will be able to provide upgradeable maintenance of the Software Solutions and the Application and provide functional updates and evolutions enabling (i) to maintain the Software Solutions and/or the Application in compliance with the applicable French legislation and regulations, (ii) to adapt the Software Solutions and/or the Application to the technological evolution of networks and IT equipment and/or (iii) Improve the use of Software Solutions and/or the Application. NEARSENS will inform the Customer accordingly.
NEARSENS will not be required to provide Support or Maintenance in the following cases:
– anomalies or problems directly or indirectly related to (i) incorrect use of the Software Solutions and/or Application by the Customer (ii) use of defective devices or (iii) any cause external to the Software Solutions and/or the Application granted by NEARSENS;
– modification or action of the Customer on all or part of the Software Solutions and/or the Application when this modification makes the Product unsuitable for its use;
– attempt by the Customer to solve the problem himself;
– delay of payments due hereunder under under the terms of Article 5.3.
ARTICLE 11 – AFTER-SALES SERVICE
NEARSENS ensures, for the benefit of the Customer, a remote after-sales service for the Products.
In the event that, during its use, the Product proves to be defective, the Customer will contact NEARSENS, under the conditions and times stipulated in article 10 hereof.
Monitoring will be carried out by NEARSENS on the Product or Products concerned, under the conditions and time limits specified and indicated by NEARSENS.
The Product or Products concerned may then be the subject of a return to NEARSENS, which will send the Customer one or more new Products, pending repair of the defective Products. The costs of returning defective Products and sending new Products will be advanced by NEARSENS.
In the event that the Products prove to be defective, the costs of returning and returning the Products will remain the responsibility of NEARSENS. Otherwise, these costs will be borne by the Customer, by reimbursement of the costs advanced by NEARSENS.
ARTICLE 12 – INTELLECTUAL PROPERTY – LICENCE
The Customer acknowledges and accepts that all rights, authorisations and interests in intellectual property rights relating to the Products, the Application, the Software Solutions integrated into the Products and/or associated with the Services, Nearsens names and logos are and will remain the exclusive property of NEARSENS or third parties who have authorized NEARSENS to use them.
The Agreement does not confer on the Customer any rights, authorisations and interests in intellectual property rights in the Products, the Application, the Software Solutions, as well as in the Nearsens names and/or logos, but only a limited right to access and use the Application and Software Solutions integrated into the Products and/or associated with the Services, under the conditions defined below.
Subject to the full payment of the Price by the Customer, NEARSENS grants to the Customer, for the duration of the CGA, for the whole world, a non-exclusive, non-marketable, non-transferable license, without right of sub-license, access and use of the Product, the Application, and Software Solutions integrated with the Products and/or associated with the Services, for its own needs solely related to the domain of the Smart Home and Smart Buildings (hereinafter the “License”).
The Customer undertakes not to use the intellectual property rights granted on the Products, the Application, the Software Solutions integrated into the Products and/or associated with the Services, other than to the extent permitted by the Agreement.
The Customer also undertakes not to perform one or more of the following acts, nor to allow a third party or authorize a third party to perform one or more of the following acts:
(i) copy all or part of the Products, Software Solutions integrated with the Products and/or associated with the Services, of the Application;
(ii) decompile or disassemble all or part of the Products, the Software Solutions integrated into the Products and/or associated with the Services, the Application, reverse engineer or otherwise attempt to obtain the source codes thereof, except as expressly permitted by applicable law;
(iii) modify, alter, adapt all or part of the Products, Software Solutions integrated with the Products and/or associated with the Services, of the Application;
(iv) create derivative works from the Products, Software Solutions integrated with the Products and/or the Services, the Application, adapt, modify, translate or modify them in whole or in part, or allow an association or incorporation of all or part of one or more of its elements to other works, including software;
(v) Lease, sublicense, sell, lend or transfer the Integrated Software Solutions to the Products and/or the Services and/or the Application to a third party or allow a third party to access and use such software solutions, in whole or in part, without the prior written consent of NEARSENS.
ARTICLE 13 – CUSTOMER OBLIGATION
The Customer undertakes, in good faith:
(i) To comply with the provisions herein and in particular with the License granted;
(ii) To respect the rules of use and custody of the Products;
(iii) To respect public order and morality;
(iv) To pay the Subscription Price;
(v) To return the Products at the end of the Subscription, if applicable, under the conditions hereof.
ARTICLE 14 – RIGHT OF RETRACTION
In accordance with Article L 221-18 of the French Consumer Code, the Customer has the right to withdraw and cancel his Order, without having to justify or bear any penalties, within fourteen (14) calendar days from the date of the Order.
If the time limit expires on a Saturday, Sunday or public holiday, it shall be extended until the next working day.
To exercise its right of withdrawal, the Customer must inform NEARSENS of its decision of withdrawal by means of the following standard form sent to the postal address ZAC Saint-Philippe II-Quartier Des Templiers 400 Avenue de Roumanille – 06410 BIOT or email [email protected]:
Withdrawal form template
For the attention of the company NEARSENS whose headquarters is located ZAC Saint-Philippe II-Quartier Des Templiers 400 Avenue de Roumanille – 06410 BIOT, France; e-mail address: www.nearsens/support
I hereby notify you of my withdrawal from the subscription agreement described below:
Order date: ….. (complete)
Consumer Name: ….. (to be completed)
Consumer address: ….. (to be completed)
Signature of the consumer ….. (only in case of notification of this form on paper)
Date: ….. (to be completed)
The Customer may also exercise his right of withdrawal by sending an unambiguous declaration, by postal mail to the ZAC Saint-Philippe II-Quartier Des Templiers 400 Avenue de Roumanille – 06410 BIOT, or by e-mail at www.nearsens/support.
ARTICLE 15 – RETURN OF THE PRODUCT
At the end of the Agreement, for whatever reason, the Customer will return the Product to NEARSENS in good condition and in good working condition, except for normal wear and tear resulting from normal and adequate use of the Product. The restitution will be made under the conditions of Article 7 hereof.
The return date of the Product will be fixed by default on the working day following the end of the Subscription. The CIient must send the Product, at its own expense, in its original packaging or in a packaging that guarantees the integrity of the product, in accordance with article 7, to the following address: ZAC Saint-Philippe II-Quartier Des Templiers 400 Avenue de Roumanille – 06410 BIOT.
Upon receipt, the Product will be tested by NEARSENS. Any repair related to a defect, or abnormal wear observed during this test will be the sole responsibility of the Customer.
ARTICLE 16 – COMMERCIAL GUARANTEE
NEARSENS undertakes, for the duration of the CGA, a commercial warranty covering defects, malfunctions, failures affecting the Products that have been ordered and making them unsuitable for their use.
To exercise this guarantee, the Customer must notify NEARSENS of the breakdown affecting the Product within FIVE (5) days of the occurrence of the breakdown by email to the following address: [email protected]
If NEARSENS considers the Customer’s request justified, it will confirm to it, in writing, its acceptance and the assumption of its claim, at its expense.
The warranty is limited to the prompt repair or replacement of the defective Product with a new or reconditioned Product at NEARSENS’ sole discretion.
The commercial warranty is excluded in case of defects or deterioration of the Product caused by:
– abnormal use of the Product, or not in accordance with the recommendations and instructions for use, by the Customer or by a Third Party
– an accident, water damage, lightning, fire, electrical fault and any other external cause;
– a modification of the Product by the Customer or a Third Party;
– negligence or lack of maintenance of the Product by the Customer.
ARTICLE 17 – PERSONAL DATA
As part of the execution of the CGA, NEARSENS will have access, as data controller, to the Customer’s personal data.
NEARSENS undertakes to process the Customer’s personal data in strict compliance with the regulations applicable to the protection of personal data and in particular Regulation (EU) no. 2016/679 of the European Parliament and of the Council of 27 April 2016 known as “GDPR”, and French law no. 78-17 of 6 January 1978, as amended, known as the “Loi Informatique et Libertés” (hereinafter together the “Regulation applicable to the protection of personal data”).
Data collected. The personal data collected are as follows:
– Customer’s first and last names;
– Customer’s postal and electronic address;
– Customer’s telephone number
– Customer installation address
– Customer identifier
– Dynamic IP address of the Customer.
NEARSENS will also be likely to collect the following event data:
– Sensor data of detectors;
– Motion data of motion detectors;
– Disconnection, switching on and off alarm systems
– input and output of the lock connected to the system.
images used as illustration in the NEARSENS application.
Purposes. NEARSENS will process the Customer’s personal data for the following purposes:
– allow the creation of its Customer Account,
– deliver the Products and return them, if necessary;
– ensure the delivery of the Services;
– assist the Customer and provide the necessary technical support;
– manage any disputes with the Client;
– and more generally for the proper management and execution of CGAs;
– and for statistical purposes.
NEARSENS may also send to the Customer who has subscribed to a Subscription, commercial prospections for products or services similar to those ordered under the Subscription.
Retention period. The data collected will be retained for the duration of the Agreement.
Beyond that, personal data are archived by NEARSENS, in a secure environment, for the legal period of limitation for the purpose of proof for the establishment, exercise or defense of a legal right.
Hosting. Personal data is hosted on servers located in the European Union.
Sharing with Third Parties. NEARSENS undertakes not to disclose, assign, rent or transmit the Customer’s personal data to third parties other than the (i) technical providers (such as hosting providers) and (ii) the subcontractors providing the Services or the delivery of the Product. The latter act as subcontractors of NEARSENS within the meaning of the Regulations applicable to the protection of personal data, on the instructions of NEARSENS and in the contractual conditions signed with NEARSENS which cannot derogate from this article and which are in compliance with the Regulations applicable to the protection of personal data.
The Recipients are:
o Zendesk: customer support request management service.
o Safe4 Security Group AS: remote monitoring service.
o NeuroSYS SP z.o.o: Business Development Service
o Amazon.com INC: Application host
Furthermore, if NEARSENS were to be involved in a merger, acquisition, sale of assets, or other capital transaction, the Customer is informed that its personal data may be transferred or shared with a Third Party. In this case, the Customer will be informed, before the personal data is transferred to a Third Party.
Security and confidentiality. NEARSENS implements organisational, technical, software and physical measures for digital security to protect personal data from unauthorized alterations, destruction and access. However, it should be noted that the Internet is not a completely secure environment and that the Application cannot guarantee the security of the transmission or storage of information on the Internet.
In the event of a personal data breach, NEARSENS shall notify the incident to the competent supervisory authority (CNIL) as soon as possible and, if possible, no later than 72 hours after becoming aware of it, unless the violation in question is not likely to pose a risk to the rights and freedoms of natural persons.
Transfer of personal data outside the European Union. The Customer acknowledges having been informed and accepts that the personal data concerning him are communicated to subcontractors located outside the European Union:
– Zendesk stores personal data outside the European Union. Zendesk is Privacy Shield certified and is committed to providing an adequate level of protection by complying with the standard contractual clauses approved by the European Commission: https://www.zendesk.fr/company/customers-partners/privacy-policy/
Right of the persons concerned. In accordance with the Regulations applicable to the protection of personal data, the Customer has a right of access, rectification, erasure, limitation and portability of his personal data. The Customer also has the right to object to its data being processed for commercial prospecting purposes by NEARSENS, the right to the erasure of its personal data, and the right to lodge a complaint with the Commission Nationale de l’Informatique et des Libertés (CNIL) if it considers that the processing carried out by NEARSENS constitutes a violation of its personal data.
The Customer’s rights to his personal data may be exercised at any time by contacting NEARSENS by email at [email protected].
In case of difficulty in the exercise of his rights, the User may lodge a complaint with the CNIL, online at https://www.cnil.fr/en/plaintes or by post at the following address: CNIL – 3 Place de Fontenoy – TSA 80715 – 75334 PARIS CEDEX 07
The information collected through cookies is solely and strictly intended for NEARSENS, in compliance with the regulations applicable to the protection of personal data. They are never passed on to third parties.
For the purposes of tracking and analyzing traffic on the Application, NEARSENS uses the Google Analytics cookie. This cookie makes it possible to differentiate visitors and to create statistics on the use of the Application by visitors, such as the number of pages visited, the frequency, the duration and the recurrence of visits. The use of this cookie is limited to the duration of the session with automatic deletion when the Customer leaves the Application. The Customer may set its browser to automatically accept or disable this cookie.
Cookies are stored in the Customer’s browser for a maximum period of thirteen (13) months after their first deposit in the terminal equipment.
In accordance with the applicable regulations on the protection of personal data, the Customer may, at any time, object to the storage of cookies. The Customer may exercise this right by contacting NEARSENS by email at [email protected].
ARTICLE 18 – LIABILITY
NEARSENS’ liability towards the Customer may be sought only in the event of a proven contractual breach committed in or on the occasion of the performance of the obligations entrusted to it under the Contract.
In compliance with the applicable regulations, NEARSENS shall not be liable under any circumstances:
– in case of delay or impossibility to provide the Subscription, due to incorrect or incomplete information in the entry of the information concerning the Customer during the creation of his Account;
– in the event of fault or failure on the part of the Client in accessing its Account and/or using the Services, in accordance with the general conditions of use of the Application.
The use made by the Customer of the Services cannot in any case engage the responsibility of NEARSENS, in any way whatsoever. The Client’s connection to the Application and its use of the Services are under its sole responsibility.
NEARSENS shall not be liable for any damage attributable to:
– the Client’s negligence or failure to comply with its legal, regulatory or contractual obligations;
– the use of the Product and/or Services by the Customer contrary to the recommendations of NEARSENS and the technical documentation provided to the Customer;
– negligence or failure of third party service providers;
– a case of force majeure.
– unavailability of a telecommunications network or internet service;
– unavailability of Services due to:
o a power cut at the Customer’s premises;
o planned maintenance of the Software Solutions integrated with the Product and/or Application;
o a volume of telephone or internet traffic on the part of the Customer which has the effect of saturating its infrastructure.
ARTICLE 19 – FORCE MAJEURE
The Parties may not be held liable if the non-performance or delay in the performance of any of their obligations, as described in these GCA, results from a case of force majeure within the meaning of law and jurisprudence.
The Party affected by the force majeure event shall immediately inform the other Party and shall do everything in its power to avoid, reduce or eliminate the causes of the delay and resume the performance of its obligations as soon as the event invoked has disappeared.
In the event of a force majeure event, the obligations of this Agreement are suspended. If the case of force majeure continues for a period of more than one (1) month, the Agreement may be terminated by either Party by registered letter with acknowledgement of receipt.
ARTICLE 20 – INSURANCE
NEARSENS certifies that each of them has taken out professional liability insurance from a company that is notoriously solvent for damages caused to the other Party or to Third Parties by itself, its staff or its employees in connection with the performance of the Contract. Furthermore, in accordance with Article 7 of the CGA, the Customer undertakes to insure the Product against theft, loss and total or partial deterioration, until the end of the CGA.
ARTICLE 21 – SUBCONTRACTING
By express agreement between the Parties, NEARSENS may, in its sole discretion and subject to informing the Customer, use one or more subcontractors to supply the Products, design and development of the Software Solutions, and/or for the provision of the Services.
NEARSENS shall remain, vis-à-vis the Customer, jointly and severally liable for the Products delivered and for the proper performance of the Services entrusted to the said subcontractors.
ARTICLE 22 – DURATION – TERMINATION
Unless otherwise agreed between the Parties, the GCA shall remain in force for the duration of the Subscription. The minimum duration of the Subscription is twenty-four (24) firm months.
If one of the Parties fails to fulfil one of the obligations, the other Party may, thirty (30) clear days from the date of receipt, or, failing the date of first submission of a registered letter of formal notice with a request for acknowledgement of receipt that has not been successful, declare the contract to be terminated automatically, without notice or judicial or other formality and without prejudice to any other rights or actions, in particular with a view to seeking any damages to which it may claim.
In the event that the Customer wishes to terminate the Subscription early, that is before the minimum period of twenty-four (24) months, it may do so under the following conditions:
– Upon payment of the sum of twenty (20) euros corresponding to the termination fee of the current Subscription;
– Subject to payment of the remaining monthly instalments until the end of the Subscription, in respect of Products and Services in progress.
The termination or termination of the CGA will result in the immediate termination of the Client’s access to the Services on the effective date of the termination or termination:
– All rights of use granted hereunder shall cease immediately;
– The customer account on the Application will be closed by NEARSENS;
– The Products will be returned by the Customer to NEARSENS, under the conditions communicated by NEARSENS.
ARTICLE 23 – MISCELLANEOUS PROVISIONS
CGAs constitute the entire agreement of the parties with respect to its subject matter and supersede and supersede any prior or current oral or written agreement between the parties with respect to that subject matter.
The CGAs are concluded intuitu personae. Under no circumstances may the rights and obligations resulting therefrom be assigned or transferred by the Customer, in any capacity whatsoever, without the prior written consent of NEARSENS.
In the event that one or more provisions of the CGA are held to be invalid or declared to be invalid under a law, a regulation or following a decision of a competent court which has become final, shall in no case affect the validity and compliance with the other clauses of the CGA.
The failure of either party to avail itself, at any time, of any of the provisions of the GCA shall not be construed in the future as a waiver of any of its rights hereunder.
The headings and subheadings of CGA articles are for reference only and cannot limit the scope of the corresponding articles.
ARTICLE 24 – APPLICABLE LAW – SETTLEMENT OF DISPUTES
This Agreement is subject to French law.
The Parties declare their intention to seek an amicable solution to any difficulties that may arise regarding the validity, interpretation or performance of the contract. In the absence of amicable resolution, all disputes relating to this contract shall be brought to the attention of the competent courts.
In accordance with the provisions of article L.616-1 of the Consumer Code, the Customer is informed that he can in any case use free of charge conventional mediation (L612-1 of the Consumer Code) or any other alternative dispute resolution method for disputes. To do this, he can contact the mediation service MEDICYS by electronic view (https://medicys-consommation.fr) or by post: Concord, 73 Boulevard de Clichy, 75009 Paris. The referral to the mediator must be made within the maximum period of one (1) year from the date of the written complaint sent by registered mail with acknowledgement of receipt to NEARSENS.