General terms and conditions of sale
Article 1 – Entirety and Scope
1.1 These General Terms and Conditions of Sale apply to all services provided by Net’Wash, represented by First One Digital S.L. (hereinafter referred to as the “Service Provider”), to professional and non-professional customers and purchasers, regardless of the clauses that may appear in the Customer’s or purchaser’s documents, and in particular their general terms and conditions of purchase.
In accordance with the regulations in force, these General Terms and Conditions of Sale are systematically communicated to any Customer who requests them, to enable him to place an order with the Service Provider.
1.2 These general terms and conditions express the entirety of the obligations of the parties. In this sense, the buyer is deemed to accept them without reservation.
1.3 The Provider and the buyer agree that these terms and conditions shall exclusively govern their relationship. The Service Provider reserves the right to modify these terms and conditions from time to time. They are available in French on the Provider’s website and are valid as of 21 November 2012. The present version cancels and replaces all previous versions.
Article 2 – Purpose of the contract
2.1 The purpose of these general conditions is to define the rights and obligations of the parties in the context of the sale of the services offered by the Provider to the purchaser and described in your order form.
2.2. These conditions only apply to services provided in France. For any service performed outside of France, or for a buyer located outside of France, it is advisable to indicate it in order to obtain a specific quote.
Article 3 – The order
3.1 Orders must be confirmed in writing by means of a purchase order duly signed by the Buyer.
Acceptance of the order by the Service Provider shall be deemed to be confirmation that the Service Provider has received the order, accepts the terms and conditions of the order and confirms the terms of the order by letter, e-mail or equivalent means; the preparation and dispatch of the invoice shall follow the acceptance of the order as soon as possible, including by electronic means
3.2 If the Customer cancels an order after it has been accepted by the Service Provider, for any reason other than force majeure, the deposit paid at the time of the order shall automatically be forfeited to the Service Provider and shall not be refunded.
If no deposit was paid at the time of the order, in case of cancellation of the order by the Customer after its acceptance by the Provider, for any reason except force majeure, a sum corresponding to 50% of the total invoice will be acquired by the Provider, as damages, to compensate for the loss thus suffered.
3.3 If the service cannot be provided, the buyer will be informed by e-mail.
3.4 The cancellation of the order for this service and its possible reimbursement will then be carried out, the rest of the order remaining firm and definitive.
Article 4 – Proof of the transaction
The computerized registers, kept in the computer systems of the Provider under reasonable security conditions, will be considered as proof of communications, orders and payments between the parties. Order forms and invoices are archived on a reliable and durable medium that can be produced as proof.
Article 5 – Information on services
5.1 The services governed by these general terms and conditions are those which appear on the Provider’s website and which are indicated as being carried out by the Provider or under its control. They are offered within the limits of the Service Provider’s availability.
5.2 The services are described and presented as accurately as possible. However, the Service Provider shall not be liable for any errors or omissions in this presentation.
Article 6 – Prices
6.1 The prices of the Services are indicated in euros, excluding taxes. Any change in the applicable rate may be reflected in the prices of the Services. The Service Provider reserves the right to change its prices at any time without notice, but the Services will be invoiced on the basis of the rates in force at the time of the order.
At no time shall the sums paid at the time of the order be considered as a deposit or advance payment.
6.2 Travel, subsistence and accommodation costs incurred in the performance of the services will be invoiced, if applicable. VAT at the applicable rate shall be added to the rates, fees and/or disbursements, if any.
6.3 Any fee agreed between the Service Provider and the Buyer necessarily implies the Buyer’s performance of the obligations set out in these terms and conditions.
6.4 Delays or other unforeseen problems beyond the control of the Contractor may result in additional fees which may be subject to additional billing. The Service Provider undertakes to inform the Buyer of such delays and/or problems as soon as they occur so that the consequences can be assessed with the Buyer.
6.5 Invoices will be issued for orders placed by the Customer. Payment of invoices is due upon receipt.
6.6 In accordance with the law, any delay in payment shall oblige the Service Provider to charge interest on late payment at the rate of three times the legal interest rate; in addition, the Service Provider shall be entitled to suspend the performance of the services until the unpaid invoice has been settled in full, without this non-performance being considered as being attributable to the Service Provider.
The automatic application of this indemnity does not prevent the application of an additional indemnity of €350 excluding VAT for debt collection.
Article 7 – Method of payment
7.1 Payment of the order shall be made only by bank cheque or bank transfer. In case of payment by check, it must be issued by a bank domiciled in France.
The Service Provider reserves the right to refuse to make a delivery or to honour an order from a buyer who has not paid in full or in part for a previous order or with whom a payment dispute is being administered.
Any order paid by cheque will only be processed once the cheque has been cashed by the Service Provider. The Service Provider shall not be held responsible for any misappropriation or fraudulent use of any means of payment.
7.2 As part of this verification, the Customer may be asked to send a copy of an identity document and proof of address to the Provider by fax. The order will only be validated after the Provider has received and verified the documents sent.
Article 8 – Availability of services and products
8.1 In the event that the Service Provider is unavailable to provide the service, the purchaser shall be informed as soon as possible and shall have the option of cancelling the order. The purchaser shall then have the option of requesting a refund of the sums paid within 30 days at the latest of their payment.
Article 9 – Obligations of the Provider
It is expressly agreed that the Service Provider’s commitments constitute a simple obligation of means, under which the services will be carried out in strict compliance with the professional rules in use and, where applicable, in accordance with the terms of the contract.
To this end, the Service Provider shall assign to the execution of the services the professionals with the skills required to ensure their execution in accordance with its quality standards.
Article 10 – Obligations of the buyer
In order to facilitate the proper performance of the services, the purchaser undertakes :
- to provide the Service Provider with complete, accurate and timely information and documents without the Service Provider being obliged to verify their completeness or accuracy;
- to take decisions in a timely manner and to obtain the necessary hierarchical approvals;
- to designate a correspondent with decision-making powers;
- to ensure that the key contacts and the correspondent are available throughout the execution of the services;
- to inform the Service Provider directly of any difficulties relating to the performance of the services.
Article 11 – Staff of the Service Provider
11.1 By virtue of the hierarchical and disciplinary authority that it exercises exclusively over its personnel, the latter shall remain under the effective control of the Service Provider during the full performance of the services.
11.2 The Service Provider guarantees the regularity of the situation of its personnel with respect to Articles L. 1221-10 et seq. and L. 3243-1 et seq. of the French Labour Code. The Service Provider further certifies that it complies with the provisions of Articles L. 8221-1 and L. 8221-2 of the French Labour Code, relating to the fight against undeclared work, as well as with the provisions of Book III, Title IV of the French Labour Code.
11.3 For the duration of the services and for a period of one year after its completion, the purchaser undertakes not to solicit or attempt to poach (or assist any other person to solicit or attempt to poach) any employee of the Provider with whom it has had contact in the course of the performance of the services. In the event of a breach, the Buyer shall owe the Service Provider, as a penalty clause, compensation equal to one year’s last gross salary of the person so removed.
Article 12 – Information, protection of personal data, confidentiality and publicity
12.1 Each Party undertakes to treat as strictly confidential the documents and information to which it will have access in the performance of this Agreement, provided that such documents and information are not known prior to the signing of this Agreement or placed in the public domain by the other Party after the signing of this Agreement.
Each Party undertakes and agrees not to disclose, publish or communicate to any third party, in any way whatsoever, without the prior written consent of the other Party, such confidential documents or information, either in the form in which each Party has had access to such items or in a form modified by it.
All documents and information entrusted by each Party shall be deemed to be confidential unless expressly stated otherwise.
Each Party undertakes to take all precautions to safeguard secrecy, in particular if it communicates all or part of the documents or information to members of its staff or to partners, it undertakes to ensure that these persons comply with this secrecy obligation.
Generally speaking, this confidentiality undertaking concerns all information, in particular the wording, identity, purpose and content, communicated by each Party, as well as all elements specific to the relationship of the Parties’ customers concerned.
This undertaking by the Parties extends to a prohibition on exploiting for its own account the documents and information to which it will have access as a result of the collaboration established.
12.2 The obligations and restrictions set out above do not apply:
- confidential information that is in the public domain or has been freely acquired prior to the commencement of the service;
- are or become known otherwise than as a result of a breach of this Article ;
- are or become known from other sources not bound by a disclosure restriction;
- or must be disclosed pursuant to a legal or professional obligation or at the request of any judicial or regulatory authority empowered to require disclosure of confidential information.
Subject to its confidentiality obligations, the Contractor reserves the right to perform services for companies competing with the Buyer’s.
The Buyer acknowledges and agrees:
- that the parties may, unless the other party expressly requests otherwise, correspond or transfer documents by electronic mail circulating on the Internet;
- neither party has any control over the capability, reliability, access or security of such e-mail;
- that the Service Provider shall not be liable for any loss, damage, expense or injury caused by the loss, delay, interception, misappropriation or alteration of any electronic mail caused by any event.
12.3 In general, the parties undertake to comply with the regulations applicable to the protection of personal data and in particular the provisions of Law 78-17 of 6 January 1978 relating to information technology, files and freedoms. Thus, in accordance with the law of January 6, 1978 modified by the law n°2004-801 of August 6, 2004, the purchaser has a right of access, of opposition, and of correction of the data concerning him, either directly on Internet at the following electronic address :email@example.com, or by mail, at the following address Net’Wash, 1 chemin de thil – 01700 St Maurice de Beynost.
Article 13 – Intellectual property
In the event that one of the Provider’s recommendations or the use of items delivered as a result of one of the Provider’s recommendations involves the use of goods that are subject to intellectual property rights belonging to third parties, the Provider shall inform the purchaser of the existence of such rights and the consequences of their use. It shall then be the sole responsibility of the Buyer to take all measures to allow the use of such rights, in particular by negotiating on its own behalf the rights of use in such a way that the Service Provider is able to avail itself of them for the purposes of the services.
The Service Provider may use or develop software, including spreadsheets, documents, databases and other IT tools, for its own purposes.
In some cases, these aids may be made available to the Purchaser upon request. Insofar as these tools have been developed specifically for the Provider’s needs and without regard to the buyer’s own needs, they are made available to the buyer for the duration of the contract as is and without any guarantee attached, for the sole purpose of use; they may not be distributed, shared or communicated to third parties either in whole or in part.
This temporary provision shall not entail any transfer of rights or guarantees, whatever the title, to the benefit of the purchaser or of the third party.
The Service Provider reserves all right, title and interest in and to :
- the original material contained in the works, documents, memos, consultations, opinions, conclusions or other procedural documents, etc. produced in the course of the services, including but not limited to all copyrights, trademarks and other intellectual property rights pertaining thereto and ;
- all methods, processes, techniques, developments and know-how, whether or not incorporated in the services or which the Service Provider may develop or provide as part of the services.
The purchaser may, without geographical limitation, free of charge and irrevocably, use internally and for the duration of copyright protection, the elements designed by the Service Provider and integrated into its work. The Buyer shall not distribute, market, and more generally make available or grant the use of such elements to third parties without the Provider’s consent.
Neither party may mention or use the name, designation, trademarks and logos or other names, whether commercial or not, of the other party without the latter’s prior written consent. Notwithstanding the foregoing, the Service Provider may use the name, denomination, trademarks and logos of the purchaser during the course of the contract to the extent strictly necessary for the performance of the services, including in proposals for subsequent services.
Furthermore, the purchaser authorises the Service Provider, once the services have been carried out, to quote its name/name as a reference and to accompany this quotation, if necessary, with a generic description of the services carried out.
Article 14 – Documents
14.1 The Service Provider shall retain the original documents provided to it and shall return them to the Buyer upon request. All documents, data or information provided by the Customer shall remain the property of the Contractor.
14.2 The Service Provider shall retain a copy of only those documents necessary for its working files.
14.3 The working documents prepared in the course of the services are our property and are covered by professional secrecy.
Article 15 – Freedom
In the event that a conflict of interest or an independence issue arises during the performance of the services, the Service Provider will immediately inform the purchaser and will seek with him the most appropriate solution to the situation in compliance with the applicable rules. In particular, if a change in regulations or professional standards prevents the Service Provider from continuing its services, it will make available to the purchaser the results of the services as well as all documents necessary for their completion, including its Documents as they stand, in order to facilitate their continuation by a third party.
Article 16 – Duration of the contract
Orders within the framework of a fixed-term contract
For orders that are part of a fixed-term contract, the contract shall be renewed by tacit agreement for the same duration unless either party gives notice of termination by registered letter with acknowledgement of receipt 30 days before the anniversary date of the contract.
Article 17 – Liability of the Provider
17.1 The entire liability of the Service Provider and its employees for any failure, neglect or default in the performance of the Services shall be limited to the amount of the sums paid for the Services in question, to cover claims of any kind (including interest and costs), irrespective of the number of actions, grounds or parties to the disputes.
17.2 This provision shall not apply to liability for death or personal injury or any other liability which the law prohibits from being excluded or limited.
17.3 In addition, the Provider shall not be liable in the following cases:
- as a result of a failure or deficiency in a product or service for which it or any of its subcontractors are not responsible;
- for facts and/or data which do not fall within the scope of the services and/or which are not an extension of them;
- if the results of the services are used for a purpose or in a context different from that in which they were provided, if the recommendations are incorrectly implemented or if the Service Provider’s reservations are not taken into account.
17.4 The Service Provider shall not be liable to its insurers for consequential damages, loss of profit or opportunity, or for the financial consequences of any claims brought by third parties against the Customer.
17.5 The Service Provider shall not be liable for any malfunctions caused by third-party software. The Buyer acknowledges that it has checked that the computer configuration it is using is free of viruses and is in perfect working order.
The Service Provider shall not be held liable for any inconvenience or damage inherent in the use of the Internet network, in particular a break in service, an external intrusion or the presence of computer viruses.
Article 18 – Suspension – Termination
18.1 Suspension of service as a sanction – Exception for non-performance
In the event that the Client fails to comply with any of its obligations under these terms and conditions and in particular its obligation to pay the agreed price, the Service Provider may, after sending a letter or e-mail notice to comply with the terms of these terms and conditions which has remained without effect for 30 days from the date of sending, suspend the provision of the service, without the Client being able to claim any restitution or reduction in the price for this reason.
18.2 Early termination as a sanction
If the Customer fails to comply with any of its obligations under these General Terms and Conditions through its own fault or negligence, the Service Provider may terminate the contract 10 days after a formal notice, sent by registered letter or e-mail, to put an end to the breach, which has not been followed up.
18.3 Early termination of a fixed-term contract
The fixed-term contract may only be terminated by the buyer for legitimate reasons, namely: judicial liquidation proceedings, unemployment, hospitalisation of more than six (6) months, over-indebtedness, death, personal bankruptcy of the buyer. Requests for cancellation invoking this reason must be duly justified and substantiated. The Customer must send his request in writing to the Service Provider.
Article 19 – Assignability and subcontracting
The Service Provider reserves the right to transfer all or part of the performance of the services to Service Providers who meet the same qualification requirements.
If the service requires special technical skills, the Contractor shall inform the client of the possibility of subcontracting part of the service. The subcontractor will then act under the sole responsibility of the Service Provider and will undertake to keep confidential all information of which it becomes aware during the performance of the services.
Article 20 – Complaints
All claims, whether amicable or judicial, relating to the performance of the services must be made within one year of the end of the performance.
Article 21 – Severe circumstances
Any circumstances beyond the control of the parties, preventing the performance of their obligations under normal conditions, shall be considered as grounds for exoneration from the obligations of the parties and shall result in their suspension.
The party invoking the above-mentioned circumstances must immediately notify the other party of their occurrence and their disappearance.
All facts or circumstances that are irresistible, external to the parties, unforeseeable, unavoidable, independent of the will of the parties and which cannot be prevented by the latter, despite all reasonably possible efforts, shall be considered as force majeure. Expressly, the following are considered to be cases of force majeure or fortuitous events, in addition to those usually retained by the jurisprudence of the French courts and tribunals: blockage of means of transport or supplies, earthquakes, fires, storms, floods, lightning, stoppage of telecommunication networks or difficulties specific to telecommunication networks external to the customers.
The parties shall meet to examine the impact of the event and agree on the conditions under which the performance of the contract shall be continued. If the case of force majeure lasts for more than three months, the present general conditions may be terminated by the injured party.
Article 22 – Partial non-validation
If one or more stipulations of these general terms and conditions are held to be invalid or declared as such in application of a law, a regulation or following a final decision of a competent court, the other stipulations shall retain all their force and scope.
Article 23 – Non-waiver
The fact that one of the parties does not avail itself of a breach by the other party of any of the obligations referred to in these general terms and conditions shall not be interpreted for the future as a waiver of the obligation in question.
Article 24 – Title
In case of difficulty of interpretation between any of the headings in the clauses and any of the clauses, the headings shall be declared non-existent.
Article 25 – Applicable law
The present general conditions are subject to the application of French law. The parties undertake to seek an amicable solution to any dispute that may arise from the provision of services.
If they fail to do so, the parties shall submit the dispute to the Commercial Court of Valence.
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