CAYENNE - TERMS AND CONDITIONS OF USE AND SALE - Version: 1.0
PREAMBLE
CAYENNE LIVE, a French simplified joint-stock company (société par
actions simplifiée) with a share capital of EUR 1,000, registered
with the Marseille Trade and Companies Register under number
944 478 106, with its registered office at 4 Avenue Comtesse Lily
Pastré, 13010 Marseille, France (hereinafter "Cayenne" or the
"Company"), publishes and operates a mobile application and a
website (together, the "Platform") enabling Sellers, whether
professional or private individuals, to offer Products for sale to
Buyers through live video sessions.
CAYENNE IS A TECHNICAL INTERMEDIATION PLATFORM. CAYENNE IS NEITHER
A SELLER, NOR A BUYER, NOR AN AGENT, NOR A DEPOSITARY OF THE
PRODUCTS OFFERED FOR SALE. CAYENNE IS NOT A PARTY TO THE SALES
CONTRACTS CONCLUDED BETWEEN USERS, WHICH ARE EXCLUSIVELY GOVERNED
BY THE RESPECTIVE LIABILITY OF THE PARTIES THERETO.
These general terms and conditions (hereinafter the "Terms") govern
access to the Platform and its use by any User, as well as the
sales concluded between Sellers and Buyers through the Platform.
The use of the Platform implies full, unreserved acceptance of these
Terms by the User. In the event of disagreement with all or part of
the Terms, the User undertakes not to use the Platform and to delete
their Account.
Cayenne reserves the right to modify the Terms at any time, under
the conditions set out in Article 20 below.
ARTICLE 1 — DEFINITIONS
In these Terms, the following capitalised terms shall have the
meaning set forth below, whether used in the singular or the plural.
"Buyer" means any User who has created an Account on the Platform
for the purpose of acquiring Products offered for sale by Sellers.
"Account" means the personal space created by the User on the
Platform, accessible by means of strictly personal and confidential
identifiers.
"Terms" means these general terms and conditions of use and sale,
together with any annexes thereto.
"Content" means any element published, transmitted or broadcast by
a User on the Platform, including videos, images, sounds, texts,
comments, messages, Product descriptions and reviews.
"Live" means a live video broadcasting session organised by a
Seller on the Platform, during which the latter presents and offers
Products for sale, and during which Buyers may interact through the
integrated Chat.
"Platform" means the "Cayenne" mobile application accessible via
the App Store and the Google Play Store, as well as the website
accessible at www.cayennelive.com, together with their features.
"Product" means any tangible movable item offered for sale by a
Seller on the Platform.
"Service" means all the technical and intermediation services
provided by Cayenne via the Platform.
"User" means any natural or legal person accessing the Platform,
whether or not the holder of an Account, and whether acting as a
Buyer, a Seller or a mere visitor.
"Seller" means any User who has created an Account on the Platform
for the purpose of offering Products for sale, and belonging to one
of the two categories defined in Article 4.1 below.
"Private Seller" means a natural person acting outside any
commercial, industrial, craft, liberal or agricultural activity.
"Professional Seller" means any natural or legal person acting on
a habitual and organised basis in the context of a commercial,
industrial, craft, liberal or agricultural activity, within the
meaning of the preliminary article of the French Consumer Code.
ARTICLE 2 — PURPOSE
The purpose of these Terms is to define:
(i) the conditions of access to and use of the Platform by any
User;
(ii) the procedures for registering, maintaining, suspending and
deleting an Account;
(iii) the respective rights and obligations of Cayenne, Sellers
and Buyers;
(iv) the framework within which sales are conducted between
Sellers and Buyers through the Platform.
These Terms are accessible at all times on the Platform and may be
reproduced or saved on a durable medium by any User.
ARTICLE 3 — ROLE OF CAYENNE — TECHNICAL INTERMEDIATION
3.1 Legal qualification
Cayenne operates as an online platform within the meaning of
Article L.111-7 of the French Consumer Code, and more specifically
as an online marketplace operator bringing Sellers and Buyers into
contact, by purely electronic means.
Cayenne acts as a provider of intermediary services within the
meaning of Regulation (EU) 2022/2065 of 19 October 2022 (the "DSA
Regulation") and benefits, on this basis, from the limited liability
regime provided for hosting providers.
3.2 Cayenne's strictly intermediary role
The User expressly acknowledges that:
(i) Cayenne provides exclusively a technical infrastructure for
live broadcasting, chat, intermediation and payment
processing;
(ii) Cayenne is neither owner, holder, nor depositary of the
Products offered for sale;
(iii) Cayenne does not inspect, verify, control or validate the
Products, their description, their condition, their
authenticity, their conformity, or their price;
(iv) Cayenne does not participate in the setting of prices, the
selection of Products, or the drafting of descriptions,
which are the sole responsibility of the Seller;
(v) Cayenne is not a party to the sales contracts concluded
between Sellers and Buyers, which are exclusively governed
by the respective liability of the parties thereto;
(vi) the Seller's legal obligations (pre-contractual information,
legal warranties, right of withdrawal, conformity, product
safety, taxation, etc.) are borne entirely and exclusively
by the Seller;
(vii) Cayenne does not act as a carrier and assumes no
responsibility for the transport, delivery, delay, loss or
damage of the Products.
3.3 No general monitoring obligation
In accordance with Article 8 of the DSA Regulation, Cayenne is not
subject to any general obligation to monitor the Content stored or
transmitted on the Platform, nor to actively seek facts or
circumstances revealing unlawful activities.
Cayenne shall, however, intervene in accordance with its legal
obligations upon actual knowledge of unlawful Content, under the
conditions set out in Article 14 below.
3.4 Best efforts obligation
Cayenne undertakes to provide the Service with diligence and in
accordance with industry standards, on a best efforts basis (and
not on an obligation-of-result basis). Cayenne does not warrant
that the Service will be uninterrupted, error-free, secure or
bug-free, nor that defects will be corrected.
ARTICLE 4 — SELLERS
4.1 Categories of Sellers
Two categories of Sellers are admitted on the Platform:
(a) Professional Sellers, subject to all legal obligations applicable
to professionals in their relations with consumers, including those
provided for in Articles L.111-1, L.221-1 and following of the
French Consumer Code, and to the provisions of the DSA Regulation
relating to the traceability of professionals.
(b) Private Sellers, whose sales are governed by the regime of
sales between private individuals provided for by the French Civil
Code. The right of withdrawal provided for by the French Consumer
Code does not apply to sales concluded between Private Sellers and
Buyers.
The status of each Seller (Professional or Private) is clearly and
visibly displayed on their profile page as well as on each Live
and each Product listing, in order to allow the Buyer to identify
their counterparty unambiguously.
4.2 Identity verification of Professional Sellers (Article 30 of
the DSA Regulation)
Prior to any listing of Products, the Professional Seller undertakes
to provide Cayenne with:
(i) their name or corporate name, postal address, telephone number
and email address;
(ii) a copy of their identity document or, in the case of a legal
entity, an extract from the trade register (Kbis or
equivalent) less than three (3) months old;
(iii) their bank details or Stripe identifier;
(iv) their registration number with the trade register or any
equivalent public register;
(v) their intra-community VAT number, where applicable;
(vi) a statement of honour certifying that the Products they offer
for sale comply with the regulations applicable in the European
Union.
The Professional Seller warrants the accuracy, truthfulness and
currency of this information, for which they are solely responsible.
Cayenne reserves the right to verify this information and to suspend
the Professional Seller's Account in the event of inaccurate,
incomplete or outdated information, in accordance with Article 30
of the DSA Regulation.
4.3 Obligations of all Sellers
Every Seller undertakes, under their sole and entire responsibility,
to:
(i) only offer for sale Products of which they are the legitimate
owner and which they are entitled to dispose of;
(ii) provide a faithful, accurate, complete and non-misleading
description of each Product (condition, dimensions, size,
brand, defects, origin, authenticity, etc.);
(iii) refrain from offering unlawful, counterfeit, dangerous,
prohibited or regulated Products (including weapons,
medicines, protected species, products subject to prior
authorisation, alcohol to minors, etc.);
(iv) respect the intellectual property rights of third parties;
(v) ship the Product sold within a maximum period of three (3)
business days from confirmation of payment;
(vi) respond within a reasonable time to questions from Buyers;
(vii) comply with all legal obligations applicable to their
activity, including tax, social and sectoral obligations;
(viii) deal directly with the Buyer for any complaint relating to
the Product, its condition, its conformity, its delivery or
its refund.
THE SELLER IS SOLELY AND EXCLUSIVELY RESPONSIBLE FOR THE PRODUCTS
THEY OFFER FOR SALE, FOR THEIR DESCRIPTION, CONFORMITY, DELIVERY
AND ANY CLAIM OR DISPUTE RELATING THERETO.
4.4 Obligations specific to Professional Sellers
In addition to the obligations set out in Article 4.3, the
Professional Seller undertakes to:
(i) provide the Buyer, prior to the conclusion of the contract,
with the mandatory pre-contractual information set out in
Article L.221-5 of the French Consumer Code;
(ii) respect the Buyer's right of withdrawal under the conditions
set out in Article 11 below;
(iii) bear the legal warranty of conformity (Articles L.217-3 et
seq. of the French Consumer Code) and the legal warranty
against latent defects (Articles 1641 et seq. of the French
Civil Code), under the conditions set out in Article 12
below;
(iv) issue an invoice in accordance with the applicable tax
regulations and provide it to the Buyer;
(v) designate a dedicated point of contact for Buyers, in
accordance with Article 12 of the DSA Regulation.
4.5 Indemnification by the Seller
The Seller indemnifies Cayenne against any action, claim, demand,
judgment, damage, costs (including legal fees), loss or prejudice
of any nature suffered by Cayenne and resulting directly or
indirectly from:
(i) a breach by the Seller of these Terms;
(ii) the non-conformity, unlawfulness or dangerousness of a
Product offered for sale;
(iii) a misleading or inaccurate description;
(iv) a violation of third-party rights (in particular intellectual
property rights);
(v) a breach of the Seller's legal obligations, including tax
and social obligations.
The Seller undertakes to reimburse Cayenne, on first demand, any
sum that Cayenne may be required to pay to a third party or a Buyer
as a result of any of the breaches mentioned above.
ARTICLE 5 — BUYERS
5.1 Capacity
Every Buyer declares and warrants that they have the legal capacity
required to conclude sales contracts in accordance with applicable
provisions, and that they comply with the age conditions set out
in Article 6 below.
5.2 Obligations
The Buyer undertakes to:
(i) provide accurate, sincere and up-to-date information when
creating their Account and placing orders;
(ii) pay the full price under the conditions set out in Article 7;
(iii) take delivery of the Product under normal conditions;
(iv) adopt respectful behaviour towards Sellers and other Users,
in particular in the Chat of Lives;
(v) refrain from any misuse of the Platform, in particular from
circumventing the integrated payment system;
(vi) address any complaint relating to the Product, its delivery
or its condition directly to the Seller, in accordance with
Article 13 below.
ARTICLE 6 — REGISTRATION AND USER ACCOUNT
6.1 Age requirements
Registration and use of the Platform are open:
(a) to natural persons of legal age (18 years old) enjoying full
legal capacity to contract;
(b) to natural persons aged 15 years or older, subject to the prior
and express authorisation of their legal representative(s) (parent
or guardian). The legal representative(s) shall remain civilly
liable for the minor's use of the Platform and for any purchase or
sale transactions carried out from the Account.
The registration of minors under the age of 15 is strictly
prohibited. Cayenne reserves the right to request, at any time,
proof of the User's age or of parental authorisation, and to
suspend or delete the Account in the absence of such evidence.
6.2 Account creation
Registration requires the provision of accurate, sincere and
up-to-date information, as well as the express acceptance of these
Terms. The User warrants the accuracy of the information provided
and undertakes to update it without delay in the event of any
change.
6.3 Identifiers and confidentiality
Login credentials are strictly personal and confidential. The User
undertakes to keep them secret and not to disclose them to third
parties. Any action taken from the Account is deemed to have been
performed by its holder, who remains solely responsible for it.
In the event of loss, theft or fraudulent use of their identifiers,
the User shall inform Cayenne without delay at the following
address: [email protected].
6.4 Suspension and termination by the User
The User may, at any time and without giving reasons, delete their
Account from the Platform's settings or by sending a request to
[email protected]. The deletion of the Account does not affect
ongoing transactions, which remain subject to these Terms until
they are fully performed.
6.5 Suspension and termination by Cayenne
Cayenne reserves the right, by operation of law and without
indemnity, to suspend or terminate the Account of any User in the
event of:
(i) inaccurate or incomplete information at the time of
registration;
(ii) any breach, even non-repeated, of any contractual or legal
obligation;
(iii) behaviour that poses a risk to the security, integrity or
reputation of the Platform or other Users;
(iv) repeated and substantiated reports;
(v) any attempt to circumvent the payment system or to commit
fraud;
(vi) any other legitimate cause, in particular upon request from
an administrative or judicial authority.
The suspension or termination shall be notified to the User by
email, accompanied by a statement of reasons and the available
remedies, in accordance with Article 17 of the DSA Regulation. The
User has a right to challenge the decision under the conditions
provided for by the DSA Regulation.
ARTICLE 7 — PAYMENT AND COMMISSION
7.1 Means of payment
Payments on the Platform are made exclusively by electronic means,
through the integrated solutions:
(i) credit card (Visa, Mastercard, American Express);
(ii) Apple Pay;
(iii) Google Pay;
(iv) any other means of payment offered by Cayenne during the
checkout process.
Any payment made outside the Platform is strictly prohibited and
shall not engage Cayenne's liability. Circumvention of the payment
system constitutes a serious breach of these Terms and entails the
immediate suspension of the Account.
7.2 Payment service provider
The processing of payments is carried out by Stripe Payments Europe
Limited, a private limited company registered in Ireland under
number 513174, with its registered office at The One Building,
1 Lower Grand Canal Street, Dublin 2, Ireland ("Stripe").
By finalising an order, the Buyer acknowledges having read and
accepted the general terms of Stripe, accessible at
stripe.com/legal.
The Buyer's banking data is collected and processed directly by
Stripe in accordance with PCI-DSS security standards. Cayenne does
not collect or store any banking data on its own servers.
CAYENNE ASSUMES NO LIABILITY FOR FAILURES, INTERRUPTIONS, DELAYS
OR ERRORS ATTRIBUTABLE TO STRIPE, WHICH IS AN INDEPENDENT THIRD-
PARTY PROVIDER.
7.3 Cayenne's commission
Cayenne charges a commission of seven percent (7%) excluding tax,
calculated on the total amount including all taxes of each
transaction concluded through the Platform (the "Commission"). The
Commission remunerates all the services provided by Cayenne,
including:
(i) access to the Platform and its features;
(ii) the technical infrastructure for live broadcasting;
(iii) secure payment processing;
(iv) intermediation between Sellers and Buyers;
(v) user support service.
The Commission is automatically deducted from the amount paid to
the Seller at the time of settlement. It is fully borne by the
Seller and is not passed on to the price paid by the Buyer.
7.4 Modification of the Commission
Any change in the Commission rate shall be individually notified
to the Sellers with a minimum notice period of thirty (30) days,
in accordance with Article 8 of Regulation (EU) 2019/1150 (the
"P2B Regulation"). The Seller who disagrees may terminate their
Account before the new Commission comes into effect.
7.5 Payment to the Seller
The amount of the sale, after deduction of the Commission, is
transferred to the Seller on the account associated with their
Stripe identifier, according to the terms and timeframes specific
to Stripe, over which Cayenne has no control.
ARTICLE 8 — ORDER AND CONCLUSION OF THE SALES CONTRACT
8.1 Formation of the contract
Any order placed on the Platform requires the prior acceptance of
these Terms and the express validation by the Buyer, by means of a
button labelled "Order with obligation to pay", in accordance with
Article L.221-14 of the French Consumer Code.
The Buyer acknowledges having read the essential characteristics
of the Product, its price, the delivery costs, the delivery time,
as well as these Terms, prior to the validation of their order.
8.2 Parties to the contract
THE SALES CONTRACT IS CONCLUDED EXCLUSIVELY BETWEEN THE SELLER AND
THE BUYER. CAYENNE IS NOT A PARTY TO THE SALES CONTRACT AND ASSUMES
NO OBLIGATION UNDER THIS CONTRACT.
Cayenne acts solely as a technical intermediary providing the
infrastructure enabling the conclusion of the contract and the
processing of payment.
8.3 Order confirmation
The order is deemed formed and the sales contract concluded between
the Buyer and the Seller upon acceptance of the payment by Stripe.
Cayenne sends the Buyer, on a durable medium, an order confirmation
summarising the essential elements of the transaction, in accordance
with Article L.221-13 of the French Consumer Code.
8.4 Availability of Products
As Products are mostly unique or available in limited quantities,
orders are processed in the order of priority of purchase during
the Lives. In the event of unavailability of the Product after
ordering, the Seller, who is solely responsible, shall inform the
Buyer immediately and proceed with the full refund of the price
paid as soon as possible and at the latest within fourteen (14)
days.
ARTICLE 9 — DELIVERY
9.1 Methods
The delivery of the Products ordered on the Platform is performed
exclusively by the Seller, who bears full responsibility for it,
through the Platform's partner carriers (Chronopost or La Poste)
or any other carrier that the Seller deems appropriate and that
Cayenne expressly accepts.
The delivery costs are clearly indicated to the Buyer prior to the
validation of the order, in accordance with Article L.221-5 of the
French Consumer Code.
9.2 Delivery times
The Seller undertakes to ship the Product within a maximum period
of three (3) business days from confirmation of payment.
The actual delivery time depends exclusively on the carrier chosen
and shall not engage Cayenne's liability. In accordance with Article
L.216-2 of the French Consumer Code, the Seller delivers the Product
no later than thirty (30) days after the conclusion of the contract.
Failing this, the Buyer may, after formal notice to the Seller has
remained unsuccessful within a reasonable time, terminate the
contract under the conditions set out in Article L.216-6 of the
French Consumer Code.
9.3 Transfer of risks
In accordance with Article L.216-4 of the French Consumer Code,
the risk of loss or damage to the Product is transferred to the
Buyer at the moment when the Buyer, or a third party designated by
them (other than the carrier), takes physical possession of the
Product.
9.4 No liability of Cayenne for transport
CAYENNE IS NOT A CARRIER AND DOES NOT INTERVENE IN ANY CAPACITY IN
THE PERFORMANCE OF TRANSPORT. CAYENNE ASSUMES NO RESPONSIBILITY FOR:
(i) THE CHOICE OF CARRIER;
(ii) THE COLLECTION OF THE PARCEL;
(iii) COMPLIANCE BY THE SELLER WITH THE SHIPPING DEADLINE;
(iv) COMPLIANCE BY THE CARRIER WITH THE DELIVERY DEADLINE;
(v) LOSS, DAMAGE OR THEFT OF THE PARCEL DURING TRANSPORT;
(vi) NON-DELIVERY OR DELIVERY TO AN INCORRECT PERSON OR ADDRESS.
Any complaint relating to transport must be addressed directly to
the Seller or the carrier, who are solely responsible. Cayenne may,
in good faith and without being contractually bound to do so,
facilitate contact between the parties concerned.
ARTICLE 10 — DESCRIPTION AND PRICE OF PRODUCTS
10.1 Description of Products
Products offered for sale on the Platform are described exclusively
by the Sellers, under their sole and entire responsibility. The
description, photographs, videos broadcast in Lives and any other
information relating to the Product are the sole responsibility of
the Seller.
CAYENNE DOES NOT VERIFY THE DESCRIPTIONS, AUTHENTICITY, CONDITION,
QUALITY, CONFORMITY OR LAWFULNESS OF THE PRODUCTS OFFERED FOR SALE.
CAYENNE PROVIDES NO WARRANTY AS TO THE CONTENT OF THE DESCRIPTIONS
PUBLISHED BY SELLERS.
The Seller warrants the accuracy, sincerity and non-misleading
nature of the information they publish. They undertake to clearly
and fairly indicate the condition of the Product, any defects, its
brand, size, origin, authenticity and any information material to
the Buyer.
10.2 Price
The price of Products is freely determined by each Seller, under
their sole responsibility, in compliance with applicable regulations.
The displayed price is expressed in euros, including all taxes
(TTC) where applicable. Delivery costs are indicated separately
prior to the validation of the order.
10.3 Authenticity of Products
The Seller warrants that the Products offered for sale are authentic
and consistent with their description. The sale of counterfeit
Products is strictly prohibited and constitutes a serious breach of
these Terms, resulting in the immediate termination of the Account
without notice or indemnity, without prejudice to civil and criminal
proceedings.
CAYENNE DOES NOT WARRANT OR AUTHENTICATE THE PRODUCTS OFFERED FOR
SALE. IN THE EVENT OF A DISPUTE REGARDING THE AUTHENTICITY OF A
PRODUCT, THE BUYER SHALL ADDRESS THE SELLER DIRECTLY, WHO IS SOLELY
RESPONSIBLE.
ARTICLE 11 — RIGHT OF WITHDRAWAL
11.1 Scope
In accordance with Articles L.221-18 et seq. of the French Consumer
Code, the consumer Buyer has a right of withdrawal when purchasing
a Product from a Professional Seller.
THE RIGHT OF WITHDRAWAL DOES NOT APPLY TO SALES CONCLUDED BETWEEN
A BUYER AND A PRIVATE SELLER, AS SUCH SALES ARE GOVERNED BY THE
REGIME OF SALES BETWEEN PRIVATE INDIVIDUALS PROVIDED FOR BY THE
FRENCH CIVIL CODE.
The status of the Seller (Professional or Private) is clearly
displayed on the Platform. The Buyer is invited to verify this
status prior to any order.
11.2 Time period
When purchasing from a Professional Seller, the Buyer has a period
of fourteen (14) calendar days from the day after the day on which
the Product is received to exercise their right of withdrawal,
without having to justify any reason or bear any penalty.
If the order concerns several Products delivered separately, the
period runs from the day after receipt of the last Product. If the
period expires on a Saturday, Sunday or public holiday, it is
extended until the next business day.
11.3 Exceptions to the right of withdrawal
In accordance with Article L.221-28 of the French Consumer Code,
the right of withdrawal does not apply, notably, to:
(i) Products made to the Buyer's specifications or clearly
personalised;
(ii) Products likely to deteriorate or expire rapidly;
(iii) Products that have been unsealed by the Buyer after delivery
and which cannot be returned for hygiene or health protection
reasons;
(iv) Products which, after delivery and by their nature, are
inseparably mixed with other items;
(v) audio or video recordings or computer software unsealed by
the Buyer after delivery.
11.4 Methods of exercise
To exercise their right of withdrawal, the Buyer notifies their
decision to the Professional Seller, before the expiry of the period
mentioned in Article 11.2, by any means evidencing the date of
sending (email, postal mail, form integrated into the Platform).
The Buyer may use the model withdrawal form reproduced in the annex
to these Terms, although this is not mandatory.
11.5 Return of the Product
The Buyer returns the Product to the Professional Seller without
undue delay and at the latest within a period of fourteen (14)
calendar days following the communication of their decision to
withdraw.
Unless otherwise indicated by the Seller, return costs are borne by
the Buyer, in accordance with Article L.221-23 of the French
Consumer Code.
The Buyer is liable for the depreciation of the Product only if it
results from handling other than that necessary to establish the
nature, characteristics and proper functioning of the Product.
11.6 Refund
The Professional Seller refunds to the Buyer the full amount paid
(price of the Product + initial delivery costs, excluding
supplementary costs resulting from the Buyer's choice of a more
expensive delivery method than standard delivery) at the latest
within fourteen (14) days from the date on which they are informed
of the withdrawal decision.
The Seller may defer the refund until recovery of the Product or
proof of dispatch by the Buyer, the date selected being that of
the first of these events.
The refund is made by the same means of payment as that used for
the initial transaction, unless the Buyer expressly agrees to
another means of refund.
11.7 Role of Cayenne
CAYENNE IS NOT REQUIRED TO ENFORCE THE RIGHT OF WITHDRAWAL OR TO
PROCEED WITH THE REFUND ON BEHALF OF THE SELLER. CAYENNE
TECHNICALLY FACILITATES THE EXERCISE OF THE RIGHT OF WITHDRAWAL BY
PROVIDING USERS WITH COMMUNICATION AND REFUND TOOLS, BUT THE
RESPONSIBILITY FOR THE REFUND LIES ENTIRELY WITH THE PROFESSIONAL
SELLER.
ARTICLE 12 — LEGAL WARRANTIES
12.1 Mandatory legal notice
In accordance with Article D.211-2 of the French Consumer Code,
the following notice is reproduced below:
"The consumer has a period of two years from the delivery of the
goods to obtain the implementation of the legal warranty of
conformity in the event of the appearance of a defect of conformity.
During this period, the consumer is only required to establish the
existence of the defect of conformity and not the date of its
appearance.
When the contract for the sale of the goods provides for the supply
of digital content or a digital service on a continuous basis for
a period exceeding two years, the legal warranty applies to such
digital content or digital service throughout the period of supply.
During this period, the consumer is only required to establish the
existence of the defect of conformity affecting the digital content
or digital service and not the date of its appearance.
The legal warranty of conformity entails an obligation for the
professional, where applicable, to provide all updates necessary
to maintain the conformity of the goods.
The legal warranty of conformity entitles the consumer to the
repair or replacement of the goods within a period of thirty days
from their request, free of charge and without major inconvenience
to them.
If the goods are repaired under the legal warranty of conformity,
the consumer benefits from a six-month extension of the initial
warranty.
If the consumer requests the repair of the goods, but the seller
imposes the replacement, the legal warranty of conformity is
renewed for a period of two years from the date of replacement of
the goods.
The consumer may obtain a price reduction by keeping the goods or
terminate the contract by being fully reimbursed against return of
the goods, if:
1° The professional refuses to repair or replace the goods;
2° The repair or replacement of the goods occurs after a period of
thirty days;
3° The repair or replacement of the goods causes major inconvenience
for the consumer, in particular when the consumer permanently
bears the costs of taking back or removing the non-compliant
goods, or if they bear the costs of installing the repaired or
replaced goods;
4° The non-conformity of the goods persists despite the seller's
unsuccessful attempt to bring them into conformity.
The consumer is also entitled to a reduction in the price of the
goods or to the termination of the contract when the defect of
conformity is so serious that it justifies an immediate price
reduction or termination of the contract. The consumer is then not
obliged to request the repair or replacement of the goods
beforehand.
The consumer is not entitled to terminate the sale if the defect
of conformity is minor.
Any period during which the goods are immobilised for repair or
replacement suspends the warranty that remained until the delivery
of the repaired goods.
The above-mentioned rights result from the application of Articles
L.217-1 to L.217-32 of the French Consumer Code.
A seller who, in bad faith, obstructs the implementation of the
legal warranty of conformity is liable to a civil fine of up to
EUR 300,000, which may be increased to 10% of the average annual
turnover (Article L.241-5 of the French Consumer Code).
The consumer also benefits from the legal warranty against latent
defects pursuant to Articles 1641 to 1649 of the French Civil Code,
for a period of two years from the discovery of the defect. This
warranty entitles the consumer to a full refund in the event of
return of the goods or to a price reduction if the goods are kept."
12.2 Implementation of the warranties
The Buyer exercises the legal warranties directly with the Seller,
who is solely liable. The Professional Seller implements the legal
warranty of conformity under the conditions set out in Articles
L.217-3 et seq. of the French Consumer Code.
With regard to sales concluded between a Private Seller and a
Buyer, only the warranty against latent defects of the French
Civil Code applies.
12.3 Role of Cayenne
CAYENNE IS NOT LIABLE UNDER THE LEGAL WARRANTIES, WHICH FALL
ENTIRELY ON THE SELLER. CAYENNE MAY, IN GOOD FAITH AND WITHOUT
BEING CONTRACTUALLY BOUND TO DO SO, FACILITATE CONTACT BETWEEN THE
BUYER AND THE SELLER IN THE EVENT OF DIFFICULTY.
ARTICLE 13 — COMPLAINTS AND CUSTOMER SERVICE
13.1 Sole point of contact for the Buyer
Any complaint relating to a Product (incorrect description, defect,
non-conformity, latent defect, late delivery, loss, damage, etc.)
must be addressed DIRECTLY AND EXCLUSIVELY BY THE BUYER TO THE
SELLER, who is solely responsible.
The Buyer may contact the Seller via the messaging system
integrated into the Platform or at the contact details displayed
on the Seller's profile page.
13.2 Intervention of Cayenne
Cayenne is not intended to arbitrate disputes between Buyers and
Sellers. However, in the event of a manifest difficulty in
communication between the parties or a proven breach by the Seller
of their obligations, Cayenne may, at its sole discretion and
without being contractually bound to do so:
(i) facilitate contact between the Buyer and the Seller;
(ii) collect the elements of the dispute;
(iii) take, where appropriate, measures against the Seller
(warning, suspension, termination);
(iv) cooperate with the competent authorities in the event of
fraud or infringement.
ANY INTERVENTION BY CAYENNE SHALL UNDER NO CIRCUMSTANCES BE
INTERPRETED AS AN ASSUMPTION OF THE DISPUTE OR AS A CONTRACTUAL
COMMITMENT OF RESULT.
13.3 Contact Cayenne
For any request relating to the Platform itself (technical issue,
Account suspension, reporting, GDPR), the User may contact Cayenne
at the following address: [email protected]
ARTICLE 14 — MODERATION AND UNLAWFUL CONTENT
14.1 Moderation policy
In accordance with the DSA Regulation, Cayenne implements
proportionate measures to moderate the Content broadcast on the
Platform, in particular in Lives, Chats and Product listings.
The following are notably prohibited:
(i) unlawful Content within the meaning of French or European
law (hatred, discrimination, apology of terrorism, child
sexual abuse material, etc.);
(ii) counterfeit Products or Products infringing the intellectual
property rights of third parties;
(iii) dangerous, prohibited or regulated Products;
(iv) misleading or aggressive commercial practices;
(v) harassment, threats, insults or defamatory remarks;
(vi) identity theft;
(vii) any attempt at fraud, scam or circumvention of the payment
system.
14.2 Reporting mechanism
In accordance with Article 16 of the DSA Regulation, Cayenne
provides every User with a mechanism for reporting unlawful
Content, accessible directly from the Platform and at the address:
[email protected]
Any report shall include:
(i) a sufficiently precise description of the reasons why the
Content is considered unlawful;
(ii) the precise location of the Content (URL, Live identifier,
message identifier, etc.);
(iii) the name and email address of the reporting party (except
for reports concerning content covered by Articles 3 to 7
of Directive 2011/93/EU);
(iv) a statement of good faith from the reporting party.
14.3 Processing of reports
Cayenne processes reports as soon as possible, in a diligent,
non-arbitrary and objective manner. Cayenne notifies the reporting
party of its decision and the reasons for it, as well as the
available remedies, in accordance with Article 17 of the DSA
Regulation.
In the event of manifestly unlawful Content, Cayenne shall promptly
remove the Content or disable access to it, without prejudice to
the sanctions applicable to the Seller or User concerned.
14.4 Cooperation with authorities
Cayenne cooperates with the competent administrative and judicial
authorities, in particular by communicating to them, upon legal
request, information relating to the Users or Content concerned.
ARTICLE 15 — CONSUMER MEDIATION
In accordance with Articles L.611-1 et seq. of the French Consumer
Code, the consumer Buyer has the right to free recourse to a
consumer mediator with a view to the amicable resolution of a
dispute with a Professional Seller or with Cayenne, after a prior
attempt at direct resolution has been unsuccessful.
Cayenne has joined "FEVAD Mediation" (Médiation FEVAD), to which
the Buyer may submit any dispute that has not been resolved
amicably with Cayenne. The contact details of the mediator are
indicated on the website www.mediateurfevad.fr.
The Buyer may also use the European Online Dispute Resolution (ODR)
platform, accessible at: https://ec.europa.eu/consumers/odr
ARTICLE 16 — PERSONAL DATA
The processing of Users' personal data is governed by Cayenne's
Privacy Policy, accessible at [URL OF THE PRIVACY POLICY], which
forms an integral part of these Terms.
Cayenne, as data controller, implements appropriate technical and
organisational measures to ensure the protection of personal data,
in accordance with Regulation (EU) 2016/679 ("GDPR") and amended
French Law No. 78-17 of 6 January 1978.
The User has at all times the rights of access, rectification,
erasure, restriction, opposition, portability and the right to
define post-mortem directives concerning their data. These rights
may be exercised at the following address: [email protected]
The User also has the right to lodge a complaint with the French
Data Protection Authority (Commission Nationale de l'Informatique
et des Libertés - CNIL): www.cnil.fr.
ARTICLE 17 — INTELLECTUAL PROPERTY
17.1 Cayenne's property
The Platform, its architecture, interfaces, databases, graphic
charter, logos, trademarks and all elements composing it are the
exclusive property of Cayenne or its licensors and are protected
by French and international intellectual property law.
Any reproduction, representation, modification, publication,
adaptation, exploitation, in whole or in part, of the Platform or
its elements, by any means whatsoever, is strictly prohibited
without the prior written authorisation of Cayenne, under penalty
of civil and criminal proceedings.
17.2 Content published by Users
The User retains ownership of the Content they publish on the
Platform. They grant, however, to Cayenne, by the mere publication
of such Content, a non-exclusive, worldwide, free, transferable
and sublicensable licence, for the duration of the legal protection
of the rights, for the purposes of use, reproduction, representation,
adaptation and dissemination of the Content in the context of the
operation of the Platform and its promotion (in particular on social
networks and Cayenne's communication media).
The User warrants that they have all the rights necessary for the
publication of the Content and that none of this Content infringes
the rights of third parties (copyright, image rights, privacy,
trademarks, etc.). The User indemnifies Cayenne against any action
or claim by third parties based on the published Content.
ARTICLE 18 — LIMITATION OF CAYENNE'S LIABILITY
18.1 Intermediary liability regime
In its capacity as a platform operator and provider of intermediary
services, Cayenne benefits from the limited liability regime
provided for in Articles 4 to 8 of the DSA Regulation and Article 6
of French Law No. 2004-575 of 21 June 2004 on confidence in the
digital economy ("LCEN").
Cayenne shall not be held liable for the Content published by Users
or for the Products offered for sale, unless it has had actual
knowledge of a manifestly unlawful nature and has not acted promptly
to remove or disable access to it.
18.2 Exclusions of liability
TO THE FULLEST EXTENT PERMITTED BY LAW, CAYENNE SHALL NOT BE LIABLE
FOR:
(i) SALES CONTRACTS CONCLUDED BETWEEN SELLERS AND BUYERS;
(ii) THE QUALITY, AUTHENTICITY, CONFORMITY, SAFETY OR LAWFULNESS
OF PRODUCTS;
(iii) DESCRIPTIONS, PRICES, PHOTOGRAPHS OR INFORMATION PUBLISHED
BY SELLERS;
(iv) TRANSPORT, DELIVERY, DELAY, LOSS OR DAMAGE OF PRODUCTS;
(v) PERFORMANCE OR NON-PERFORMANCE OF THE OBLIGATIONS OF THE
SELLER OR THE BUYER (WITHDRAWAL, REFUND, LEGAL WARRANTY,
LATENT DEFECTS, ETC.);
(vi) FAILURES, INTERRUPTIONS, DELAYS OR ERRORS OF STRIPE OR ANY
OTHER THIRD-PARTY PROVIDER;
(vii) INTERRUPTIONS, BUGS, UNAVAILABILITY OR TECHNICAL FAILURES OF
THE PLATFORM, IN PARTICULAR DURING LIVES;
(viii) LOSSES OF DATA, CONTENT OR BUSINESS OPPORTUNITIES SUFFERED
BY SELLERS;
(ix) INTERACTIONS BETWEEN USERS, IN PARTICULAR IN THE CHAT OF
LIVES;
(x) INDIRECT, INTANGIBLE OR CONSEQUENTIAL DAMAGES, IN PARTICULAR
LOSS OF TURNOVER, LOSS OF CLIENTELE, DAMAGE TO IMAGE OR
REPUTATION.
18.3 Liability cap
In the event that Cayenne's liability is nevertheless engaged, on
any basis and for any cause whatsoever, its total cumulative amount
is expressly limited, to the fullest extent permitted by law, to
the amount of Commissions effectively received by Cayenne for the
transactions giving rise to the dispute, during the twelve (12)
months preceding the event giving rise to the liability.
18.4 Reservation
The limitations and exclusions provided for in this Article do not
apply in the event of gross negligence or wilful misconduct on the
part of Cayenne, nor in cases where liability cannot be limited or
excluded by law (in particular bodily injury).
ARTICLE 19 — FORCE MAJEURE
Cayenne shall not be held liable for any failure to perform its
obligations resulting from a case of force majeure within the
meaning of Article 1218 of the French Civil Code, or from any event
beyond its reasonable control, including:
(i) natural disaster, fire, flood, storm, earthquake;
(ii) war, terrorist attack, riot, insurrection, demonstration;
(iii) strike (internal or external), labour dispute, blockage of
communication or transport routes;
(iv) breakdown, failure, interruption or saturation of
telecommunications, electricity or internet networks;
(v) failure, interruption or unavailability of third-party
providers (Stripe, OVH, carriers, cloud providers, etc.);
(vi) cyberattack, intrusion, hacking, denial-of-service attack,
computer virus;
(vii) decision by an administrative or judicial authority,
legislative or regulatory developments imposing a suspension
or modification of the Service;
(viii) epidemic, pandemic, sanitary measures.
In the event of such an event, Cayenne shall inform the Users as
soon as possible and shall make its best efforts to limit the
impact on the Service.
ARTICLE 20 — MODIFICATION OF THE TERMS
Cayenne reserves the right to modify these Terms at any time, in
particular to adapt them to changes in regulations, the Platform's
features or its business model.
Users are informed of any substantial modification of the Terms by
notification on the Platform and/or by email, with a notice period
of:
(i) thirty (30) days for Sellers, in accordance with Article 8 of
the P2B Regulation;
(ii) fifteen (15) days minimum for Buyers.
Continued use of the Platform after the expiry of the notice period
constitutes acceptance of the modified Terms. A User who does not
accept the modifications may terminate their Account before they
come into force, under the conditions set out in Article 6.4.
ARTICLE 21 — MISCELLANEOUS
21.1 Entire agreement
These Terms, together with the Privacy Policy, constitute the
entire agreement between the parties in relation to their subject
matter and supersede any prior or contemporaneous communication or
proposal, written or oral.
21.2 Severability
If one or more provisions of these Terms are held to be invalid or
declared as such pursuant to a law, regulation or final decision of
a competent court, the other provisions shall retain their full
force and effect.
21.3 Non-waiver
The fact that one of the parties does not avail itself, at any
given time, of any of the provisions of these Terms shall not be
interpreted as a waiver of the right to subsequently invoke the
same.
21.4 Tolerance
No tolerance, regardless of its duration or frequency, may be
interpreted as a waiver of the rights of the party concerned.
21.5 Assignment
Cayenne reserves the right to assign, transfer or contribute to a
third party all or part of the rights and obligations arising from
these Terms, in particular in the context of a restructuring,
merger, acquisition or transfer of assets. The User may not assign
their rights and obligations without the prior written consent of
Cayenne.
21.6 Notices
Any notice addressed to Cayenne must be sent to the following
address: [email protected] or by postal mail to the registered
office.
21.7 Governing language
These Terms are drafted in French and translated into English for
the convenience of Users. In the event of any discrepancy or
contradiction between the French and English versions, THE FRENCH
VERSION SHALL PREVAIL AS THE BINDING REFERENCE, in particular for
disputes involving consumers residing in France or transactions
governed by French law, in accordance with French Law No. 94-665
of 4 August 1994 on the use of the French language (the "Toubon
Law").
ARTICLE 22 — GOVERNING LAW AND JURISDICTION
22.1 Governing law
These Terms are governed by French law, to the exclusion of
conflict-of-laws rules.
22.2 Jurisdiction
In the event of a dispute relating to the formation, interpretation,
performance or termination of these Terms, the parties shall
endeavour to find an amicable solution prior to any legal action,
where appropriate by resorting to the mediation provided for in
Article 15.
Failing amicable resolution:
(i) disputes between Cayenne and a consumer Buyer shall be
brought, at the latter's choice, before the courts of their
place of domicile or of Cayenne's registered office, in
accordance with Article R.631-3 of the French Consumer Code;
(ii) disputes between Cayenne and a Professional Seller or any
User acting in a professional capacity shall fall within the
exclusive jurisdiction of the courts of Marseille, France,
even in the event of multiple defendants or third-party
claims.
─────────────────────────────────────────────────────────────────
ANNEX — MODEL WITHDRAWAL FORM
(Article L.221-5 of the French Consumer Code)
─────────────────────────────────────────────────────────────────
To be completed and returned only if you wish to withdraw from an
order placed with a Professional Seller on the Cayenne Platform.
To the attention of [NAME AND CONTACT DETAILS OF THE SELLER]:
I hereby notify you of my withdrawal from the contract relating
to the sale of the goods below:
Order reference: ___________________
Order date: ___________________
Delivery date: ___________________
Buyer's name: ___________________
Buyer's address: ___________________
Date: ___________________
Signature (only in case of paper notification): ___________________
═══════════════════════════════════════════════════════════════
END OF TERMS AND CONDITIONS — CAYENNE LIVE
═══════════════════════════════════════════════════════════════