- Subject of the General Conditions of Use
JBS Services, a simplified joint-stock company with a capital of 1000 euros, whose registered office is 11 rue des Arts et Métiers Lotissement Dillon Stade c/o BURO Club Martinique Immeuble Avantage Entrance B 1st floor 97200 Fort de France, registered in the register of Commerce et des Sociétés de Fort de France under the number 898 694 864 (hereinafter, “Act 2 Win”) develops services, a network and expertise enabling its customers to reduce waste through the sale or donation of their so-called "short-dated" products, their surplus of products and unsold products, food or not, as well as, in general, the reduction and recovery of their waste through circular economy solutions.
JBS Services is the owner of the rights relating to an application, called "Act 2 win" (hereinafter, the " Platform », as defined in article 2 below), available on mobile, and from the website accessible at the following address: https://www.act2win.fr, which it publishes.
The publication director is Mr. Johan BARCLAY, president of JBS Services.
Act 2 Win can be contacted at its postal address as well as at the following email address: contact@act2win.fr
The Website is hosted by Planet Hoster, whose head office is located at 4416 Louis B. Mayer, Laval, Quebec, Canada, H7P 0G1.
The host can be contacted at his postal address as well as on his website at the following address: https://www.PLANETHOSTER.com/fr/Contact
The Platform makes it possible, through a geolocation system, to connect consumers with merchants (hereinafter, the “ Partner businesses “) offering for sale their unsold products of the day (food and non-food) at a reduced price due to their limited shelf life and/or relevance (newspapers), thus participating in the fight against waste.
These general conditions of use (the " Terms of Service ") govern all relations between Act 2 Win and the Business Partners, professionals, in the context of the latter's use of the Platform and/or the aforementioned website and are intended in this context to determine the conditions in which Act 2 Win grants, on a non-exclusive basis, the Business Partner a right of access to the Platform so that it can promote its Products and offer them for sale at a reduced price to consumers located nearby.
Act 2 Win and the Business Partner will hereinafter be individually referred to as a " Part » and together the « Parts ".
The General Conditions of Use do not apply to natural persons acting for purposes that do not fall within the scope of their commercial, industrial, craft, liberal or agricultural activity (consumers).
- Acceptance of the General Conditions of Use
The Business Partner must accept the General Conditions of Use in order to access the Platform and/or the associated website and the Services described in article 4 below.
If the Business Partner does not accept all or part of the General Conditions of Use, it must waive access to the Platform and/or the associated website and the Services.
Act 2 Win reserves the right to adapt or modify the General Conditions of Use at any time by publishing an updated version of these General Conditions of Use and by informing the Partner Businesses of a substantial modification of these Conditions Terms of Use, which will apply at the end of a period of fifteen (15) days following notification by Act 2 Win to the Partner Shops of the modified version. If they so wish, the Partner Businesses may terminate the Contract (“Termination of the Contract for modification of the T&Cs”) before the expiry of this fifteen (15) day notice period. The termination will take effect at the end of a period of fifteen (15) days following the Termination of the Contract for modification of the T&Cs.
The Business Partner is invited to print without delay and keep for its archives a copy of the version of the General Conditions of Use that will apply to it.
- Definitions
For the understanding and interpretation of the terms contained in the General Conditions of Use which would not be defined elsewhere under the terms hereof, whether they are used in the singular or in the plural, the Parties decide to refer to the definitions following:
- “Platform”: refers to the “Act 2 Win” platform, the rights of which are held by JBS Services, allowing consumers:
(i) to be informed in real time of offers for the sale of Products, as defined below, from the Partner Trade located nearby using a geolocation system;
(ii) and to be put in contact with the latter to buy these Products directly from the Partner Business at a reduced price.
- “Product(s)”: refers to perishable food or non-food products (e.g. plants, flowers, etc.) or products of limited relevance (newspapers) presented for sale via the Platform in the form of “baskets” (eg: baskets fruits and/or vegetables; cosmetic basket; etc.);
- “Service(s)”: refers to the services described in article 4 below.
- Description of Services
4.1. Right to use the Platform
Act 2 Win grants to the Trade Partner, for the duration of the contractual relationship between the Parties under the present, a non-exclusive, non-transferable, strictly personal license to use the Platform, in return for the payment of the commission referred to in Article 9.
Apart from the rights granted in this article and without prejudice to them, the Business Partner is not authorized hereunder to:
- copy, print or transfer all or part of the Platform, or its content;
- sell, distribute, rent or sublicense in any way all or part of the Platform, or its content;
- modify the Platform, or its content;
- reproduce or merge all or part of the Platform, or its content into other computer programs;
- compile the Platform, or its content, decompile it, disassemble it, translate it or analyze it, except within the limits authorized by French law;
- use the Platform, or its content for purposes other than its original function.
4.2. Provision of a dedicated space on the Platform
- General provisions
Act 2 Win provides the Business Partner with a dedicated space on the Platform, on which the Business Partner undertakes to inform, for the benefit of consumers, that this constitutes a substantial obligation under the General Conditions of Use:
- its opening hours;
- all the information required by French law, and according to the terms provided for therein, in the context of relations between professionals and consumers when concluding a distance selling contract relating to promotional actions, and in particular:
- the essential characteristics of the Products contained in the baskets offered;
- when possible, the reference price of the basket in store, in euros (€) and including the amount of value added tax (VAT);
- the price of the basket on the Platform, after reduction, in euros (€) and including the amount of value added tax (VAT); where possible, the proposed discount;
- the duration of the promotional offer;
- the period within which the Product will be made available and the times at which the consumer may collect it from the Business Partner;
- information relating to the identity of the Business Partner and its activities and contact details;
- the mandatory information applicable to promotional actions;
- the absence of the right of withdrawal;
- in the event of the presence of alcohol in a basket, the Business Partner will specify this clearly and will indicate all information required by law; when withdrawing the order, the Business Partner will carry out the identity checks for which it is responsible;
- any other mandatory legal notice;
- etc
On this dedicated space, the Business Partner will also be able to:
- view its Products for sale in real time;
- add new Products and remove unavailable Products;
- change their banking information;
- consult and download their invoices.
- Subscription offer
In addition to offers concerning the one-time purchase of baskets of Products, the Business Partner may choose to offer via the Platform a subscription offer (the "Subscription"), the characteristics of which will be as follows:
- a Subscription allows the purchase by the consumer of four (4) baskets of Products, the baskets of Products being to be collected from the Partner Trade at the frequency of one (1) basket of Products per week, on the dates and times specified in the announcement of the Business Partner;
- a Subscription allows the purchase of the four baskets of Products referred to above with a reduction of five (5) percent (%) of the total price of the four baskets; the total price is paid by the consumer on the date of the order; the amount of this reduction is borne by Act 2 Win, and will be deducted from the monthly amount of Act 2 Win's commissions;
- a Subscription is concluded from the order confirmation as described in the point below, and ends on the date of provision of the fourth basket of Products as indicated by the Trading Partner;
- the Subscription will be tacitly renewed for the same duration at each expiry date, unless terminated by the consumer before the date of availability of the last basket of Products on the Application in his “My purchases” space. In the event of termination after the date of availability of the last basket of Products, the price will be due for the Subscription tacitly renewed, the termination taking effect at the end of the renewed period;
- the consumer will have the option of suspending his Subscription for one to three weeks if it is impossible to withdraw the Products; this suspension may be made by the consumer on the Application in his “My reservations” space, at least three (3) days before the next withdrawal date.
4.3. Announcements and content published by the Trading Partner on the Platform
The Trading Partner is responsible for all content published by it on the Platform.
The Business Partner undertakes:
- to exclusively publish advertisements relating to Products of a perishable or seasonal nature, whether they are food or not (flowers, plants, cosmetic products), with the aim of combating the waste of unsold items of the day;
- to publish advertisements exclusively for available Products, at times to be specified in the advertisements;
- to withdraw advertisements corresponding to Products that have become unavailable as soon as they become unavailable;
- to immediately inform Act 2 Win in the event of unavailability of Products occurring after the confirmation of an order by the consumer; in this case, Act 2 Win will reimburse the consumer for the price of the Products concerned and will pass on this cost to the Trading Partner, which will bear the cost;
- not to publish any content likely to infringe the rights of third parties and/or Act 2 Win, and to refrain from making remarks likely to defame, harass, threaten and/or make use of offensive remarks in terms of racial, ethnic or otherwise;
- not to offer Products resold at a loss;
- and, in general, to publish information in accordance with legal and regulatory provisions, which is accurate and up-to-date concerning the Products and their availability.
Act 2 Win does not intervene in the writing of advertisements and has no control over their content.
4.4. Consumer reviews and comments
Act 2 Win offers consumers, if they wish, to rate their order in the form of star ratings and comments.
These notices will not be visible on the Platform but may be communicated, anonymously, to the Merchant Partners concerned.
Act 2 Win does not intervene in the drafting of these opinions and exercises no control over their content, except for legal obligations imposed on it.
However, Act 2 Win reserves the right not to communicate an opinion when its content:
- infringes or is contrary to public order or morality;
- presents a pornographic character;
- infringes the rights to the reputation or image of any natural or legal person;
- is disparaging or defamatory;
- more generally, is contrary to the laws and regulations in force.
- Terms of provision of Services by Act 2 Win
Act 2 Win undertakes, within the framework of an obligation of means, to provide the Services with all the care and skill at its disposal in accordance with the stipulations hereof, the rules of the art, the uses and the regulations. applies.
Access and use of the Platform and the site
Act 2 Win guarantees to the Business Partner that it holds all the rights allowing it to conclude these presents and declares in this respect to be the holder of all the intellectual property rights necessary for the use of the Platform in France.
Act 2 Win implements all the means at its disposal to ensure quality access to the Platform and its website.
Act 2 Win is bound by an obligation of means with regard to access to the Platform and the site.
Act 2 Win reserves the right to temporarily suspend access to the Platform for technical or maintenance reasons without these operations giving rise to any compensation.
Connecting with consumers
Act 2 Win connects consumers and the Business Partner.
The connection is made according to a geolocation system
By default, only Partner Businesses offering Products for sale through the publication of advertisements on the Platform will be visible to consumers on the latter.
Any contract for the sale of Products is concluded directly between consumers and the Business Partner, according to the general conditions of sale of the latter which must be made available to consumers beforehand on the Platform.
Act 2 Win can in no way be held liable for these sales concluded directly between the consumer and the Business Partner.
Billing mandate
The Trade Partner expressly authorizes Act 2 Win, under the conditions provided for by article 289, I, 2 of the General Tax Code and the Official Bulletin of Public Finances-Taxes BOI-TVA-DECLA-30-20-10 of January 13, 2014 (No. 340-500), to invoice in the name and on behalf of the Business Partner consumers concluding sales with the Business Partner via the Platform, in accordance with the pricing conditions provided by the Business Partner on the Platform.
The Business Partner retains full responsibility for its obligations in terms of invoicing and its consequences with regard to value added tax (VAT).
The invoicing of consumers will be carried out by electronic transmission, by making it available on the Platform and by sending to the electronic address indicated by the latter, a ticket according to the model appearing in the Appendix hereto.
A copy of each ticket will be sent simultaneously by Act 2 Win to the Business Partner by making it available in its dedicated space.
The Business Partner will have a period of ten (10) days from this transmission to contest the content; failing this, he will be deemed to have accepted the corresponding invoicing.
The Trade Partner is informed and accepts that Act 2 Win will use the services of the MangoPay payment platform for invoicing consumers in its name and on its behalf.
- Trade Partner Guarantees
The Business Partner declares and guarantees that it fulfills all its legal and regulatory obligations relating to its status.
The Trading Partner guarantees Act 2 Win against any disturbances and claims whatsoever from third parties in respect of the Products sold by the Trading Partner or advertisements published by the Trading Partner via the Platform.
Compensation and/or costs of any kind, incurred by Act 2 Win due to such a problem or such a claim by a third party (in particular lawyer's fees), as well as all damages awarded against Act 2 Win in this regard, will be borne by the Trading Partner, without prejudice to the damages to which Act 2 Win could claim.
- Duration
The General Conditions of Use are applicable for an indefinite period from their acceptance by the Business Partner when creating their account.
The contractual relationship between the Parties may be terminated at any time and for any reason whatsoever by one or other of the Parties by respecting a prior notice of thirty (30) days, notified by registered mail with request notice of receipt.
In the event of termination on its own initiative, Act 2 Win will send the reasons for the termination on a durable medium to the Business Partner.
- Suspension of Services
Act 2 Win reserves the right to immediately suspend access to the Services in the event of a serious breach and/or repeated breaches by the Business Partner of its essential obligations and in particular:
- in the event of non-compliance with its payment obligation provided for in Article 10;
- in the event of publication of illegal content, likely to infringe the rights of third parties and/or Act 2 Win, or likely to defame, harass, threaten and/or make use of offensive remarks in racial, ethnic or other terms ; in the event of a breach of its obligations under these General Terms and Conditions of Use;
- in the event of violation of legal and regulatory provisions.
The reasons for this suspension of service will be communicated by Act 2 Win to the Business Partner who may contest them by sending a complaint under the conditions provided for in article 12 of these General Conditions of Use.
- Termination
In the event of breach by one of the Parties of the obligations imposed on it hereunder and after formal notice sent to the other Party by registered mail with acknowledgment of receipt and remaining unsuccessful within a period of seven ( 7) days, the other Party may terminate the contractual relationship by notifying the other Party by registered letter with acknowledgment of receipt, with immediate effect.
- Prices and invoicing
Commission
In return for the Services rendered by Act 2 Win, the Business Partner will pay Act 2 Win a commission excluding tax of:
- 30 % of the price of each basket of Products purchased via the Platform when the price of the basket exceeds five (5) euros, all taxes included;
- 1.50 euro per basket of Products purchased via the Platform when the price of the basket is less than or equal to five (5) euros, all taxes included.
If an order includes several baskets of Products, said commission will be applied to each basket.
The Trading Partner authorizes Act 2 Win to deduct the amount, all taxes included, of this commission directly from the payment made via the Platform.
Billing
Act 2 Win will send monthly to the Trading Partner:
- a document detailing the number of orders made during the past month and their amount;
- an invoice corresponding to the amount of commissions on these orders;
- a summary of the amount to be paid monthly by Act 2 Win, taking into account the amounts due for orders and the amount of commissions.
These documents will be issued and made available to the Business Partner in its dedicated space in electronic form, which the Business Partner expressly accepts.
They may be sent additionally by mail if the Trade Partner so requests.
Reimbursement in the event of unavailability of the Products
As specified in article 4.3 above, in the event of unavailability of Products occurring after the confirmation of an order by the consumer, the Trade Partner expressly mandates Act 2 Win to have the product canceled in its name and on its behalf. the transaction and not to debit the consumer for the price of the Products concerned, which corresponds to a substantial obligation of the Business Partner under the General Conditions of Use. Where applicable, these operations will appear on the invoice sent to the Business Partner.
Reimbursement in the event of cancellation of the order by the consumer
In the event of cancellation by the consumer of an order, via the Application, made up to two (2) hours before the start of the collection time indicated by the Partner Trade for the withdrawal of the Products and recalled in the order confirmation, the Trade Partner expressly mandates Act 2 Win to have the transaction canceled in its name and on its behalf and not to debit the consumer for the price of the order, which corresponds to a substantial obligation of the Trade Partner under the Contract. In the event of cancellation occurring less than two (2) hours before the start of the collection schedule, the consumer will be debited for the amount of his order. Where applicable, these operations will appear on the invoice sent to the Business Partner.
Refund in case of return and/or complaint
The Trading Partner will, at its sole discretion, mandate Act 2 Win to reimburse the consumer in its name and on its behalf following a return or a complaint from the consumer.
In the event of a proven complaint for the reasons listed below, the Trade Partner expressly mandates Act 2 Win to reimburse the consumer in its name and on its behalf:
- the basket of Products has not been delivered to the consumer, apart from the cases of unavailability of Products referred to in Article 4.3 of the General Conditions of Use;
- the Products in the basket have passed their expiry date;
- the basket given to the consumer does not correspond to the subject of the order;
- the cold chain was not respected;
- the Products turn out to be unfit for consumption;
- the quantity of Products delivered to the consumer is insufficient.
Where applicable, refunds will appear on the invoice sent to the Trading Partner.
In case of complaint or return, the commission will remain due to Act 2 Win.
- Responsibility
The Parties are liable for the harmful consequences resulting from the execution or non-execution of the obligations imposed on them by these General Conditions of Use.
The total liability of Act 2 Win is limited to the total amount of the commissions described in article 9 actually paid by the Business Partner to Act 2 Win during the term and under the terms hereof.
Act 2 Win shall not be held liable to the Business Partner for any indirect damage or loss (including in particular any indirect loss of profits, turnover, contracts, time, customers, reputation and/or anticipated savings), suffered or incurred by the Business Partner, in any way whatsoever.
- Complaints
For any complaint, the Business Partner can contact Act 2 Win at the following address: contact@Act2Win.fr
Act 2 Win undertakes to make its best efforts to respond to complaints submitted within a reasonable time given their nature and complexity.
- Insurance
The Trading Partner undertakes to take out and maintain throughout the duration of the contractual relationship with Act 2 Win, with a notoriously solvent company, a civil liability and professional civil liability insurance policy covering (i) all damage direct and material damages due to a breach of contract by the Business Partner as well as (ii) damage caused to any third party as a result of fault or negligence committed by the Business Partner, its employees, agents or partners in the context of the present.
The Business Partner will send, at Act 2 Win's request, its damage or professional civil liability insurance mentioning the guaranteed amounts.
- Intellectual property
Each of the Parties retains all of its intellectual property rights over its own works and brands, these General Conditions of Use do not operate any transfer of ownership (copyrights, neighboring rights, brands and other distinctive signs, etc.) .
The Parties are informed that these General Conditions of Use do not entail any transfer or license to use the respective intellectual property rights of the Parties (trademarks, logos, distinctive signs, etc.), other than those described in Article 4.1 hereof and in this article.
The Trading Partner grants Act 2 Win, for the duration of the contractual relationship between the Parties, a non-exclusive, non-transferable license to use its trademarks, logos and trade names, for the purposes of delivering the Services, the presentation of the Business Partner and the publication of its announcements on the Platform. As such, the Trade Partner declares to be the holder of all the intellectual property rights on these brands, logos and trade names.
Any other use by one of the Parties of the trademark, logo or any other distinctive sign of the other Party must be subject to the prior written authorization of the latter.
- Personal data – Privacy policy
15.1. Personal data of the Business Partner
Act 2 Win is brought, within the framework of the execution of the present, to collect and process certain personal data of the Partner Trade.
The Business Partner is invited to consult Act 2 Win's privacy policy, to which it is referred for a more detailed presentation of the conditions for the collection and processing of its personal data by Act 2 Win in the context of the execution hereof.
Act 2 Win's privacy policy is an integral part of the Terms of Use.
15.2. Personal data of Act 2 Win transmitted to the Trading Partner
Act 2 Win is required to communicate to the Trade Partner personal data concerning it within the framework of the execution of these presents. Act 2 Win remains the exclusive owner of the personal data files communicated in this context.
The Business Partner undertakes to comply with the regulations in force applicable to the processing of personal data and, in particular, Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 applicable since May 25, 2018 as well the Data Protection Act of January 6, 1978 as amended by Law No. 2018-493 of June 20, 2018.
In particular, the Business Partner undertakes to process the personal data transmitted to it by Act 2 Win in accordance with the above-mentioned Act 2 Win privacy policy and with the same level of requirement.
The Business Partner will be liable to Act 2 Win for any damages it may cause as a result of a breach of its obligations under this clause.
- Privacy
The Parties undertake to keep strictly confidential all information concerning the other Party to which they may have had access during their partnership, regardless of the mode of communication of said information and more particularly any commercial, technical or financial information. obtained within the framework of the partnership and likely to favor the interests of a competing company or to harm Act 2 Win or the Business Partner, even indirectly.
In particular, the Parties are prohibited from using or disclosing, directly or indirectly, for their own benefit, to any third party whatsoever the information transmitted to them by the other Party.
The Parties guarantee the proper performance of this obligation of confidentiality by their managers, their representatives, their employees, their subcontractors and, more generally, their collaborators and their agents, whoever they may be.
The Parties undertake to respect this obligation of confidentiality throughout the duration of the protection of the Rights. Any commercial, financial or technical information that is not in the public domain is considered confidential by nature by the Parties.
However, information known to the public or which would be lawfully known to the public or the disclosure of which has been expressly authorized by the Parties together will not be considered confidential.
- Independence of the Parties
Each of the Parties acts for its own account and under its sole responsibility and remains in particular solely responsible for its interventions, acts, allegations, commitments, services, products and stakeholders, etc.
Neither Party may enter into a commitment of any kind whatsoever in the name and/or on behalf of the other without having obtained the prior written agreement of this Party.
Neither these General Conditions of Use nor any of their stipulations can in any way be interpreted as creating between the Parties, their partners or their stakeholders, a sales mandate, a subsidiary, an agency contract, a concession , franchise, brokerage, employment, association or any form of corporation.
No staff member of either Party may act as a representative of the other, nor receive any instruction whatsoever, except for what is necessary to ensure compliance by each Party with the rules of security relating to the premises and confidentiality relating to the mission, subject hereof.
- Various
It is agreed that any tolerance or waiver by one of the Parties, in the application of all or part of the commitments provided for in the General Conditions of Use, whatever the frequency and duration may have been, cannot be considered as modification. of the General Conditions of Use nor generate any right.
The nullity or inapplicability of any of the stipulations of the General Conditions of Use will not invalidate the other stipulations which will retain all their force and scope.
However, the Parties may, by mutual agreement, agree to replace the invalidated stipulation(s).
- force majeure
None of the Parties may be held responsible for its failures or delays in the performance of any of its obligations under the General Conditions of Use, if these failures or delays are caused by events under the force major, as defined by article 1218 of the Civil Code and the case law of the French courts.
- Election of domicile
For the execution of these presents as well as their consequences, the Parties respectively elect domicile, where all notifications will be validly received:
- for Act 2 Win, at its head office indicated in the preamble hereto;
- for the Business Partner, to the address provided on its account associated with the Platform.
- Applicable law – attribution of jurisdiction
Applicable Law: The General Conditions of Use are subject to French law.
Prior conciliation: Before any contentious action, the Parties will seek, in good faith, to settle amicably their disputes relating to the validity, execution and interpretation of the General Conditions of Use. The Parties will have to meet in order to compare their points of view and make all useful findings to enable them to find a solution to the conflict between them. During this preliminary conciliation phase, and if the nature of the dispute justifies it, the Parties may agree on the establishment of a mediation procedure which may in particular be held under the aegis of the business mediator (https:/ /www.mieist.bercy.gouv.fr/). The Parties will endeavor to find an amicable agreement within thirty (30) days of notification by one of them of the need for an amicable agreement, by registered letter with acknowledgment of receipt.
Jurisdiction: In the event that an amicable solution has not been found within this period, the Parties agree to bring their dispute before the competent courts of Paris, notwithstanding the cases of multiple defendants or warranty claims. It is agreed that, notwithstanding the stipulations of the paragraphs above, the Parties retain in all circumstances the right to act before the jurisdiction of summary proceedings on the basis in particular of articles 145, 872 and 873 of the Code of Civil Procedure.
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