General Terms and Conditions of Sale

These General Terms and Conditions of Sale are current as of January 1, 2019.

ARTICLE 1 – The Parties

The term “Service Provider” refers to SAS Manterys, a simplified joint stock company with a capital of 100 euros, registered in the Trade and Companies Register of Antibes under number RCS 834 104 028, and whose registered office is located at 33 Rue Bricka, 06160 Juan-Les-Pins, France.

The Service Provider is a company specialized in Computer Programming and Web Referencing.

The term “Client” refers to any legal or natural person who has required the Supplier’s skills.

The term “Third Party” refers to any natural or legal person not party to these General Terms and Conditions (GTCs).

ARTICLE 2 – General

The purpose of these GTCs is to define the rights and obligations of the Parties when performing services performed by the Supplier for the Client in the context of its activities.

These General Terms and Conditions of Sale (hereinafter referred to as the “GTCs”) apply to any contract concluded between the Service Provider and the Client, in connection with the provision of services (the Services) as defined in the quotation validated by the Client.

The Services may be provided either remotely or at the Customer’s premises, at the option of the Supplier and the Customer.

The GTCs are systematically sent or delivered to each Customer before any order is placed (the Order). Consequently, the fact of placing an Order implies the Client’s full and unreserved acceptance of these GTCs, to the exclusion of any other documents in his possession such as prospectuses, catalogues or advertising brochures issued by the Supplier, which will have only an indicative and non-contractual value.

In the event of any inconsistency between provisions of the quotation and these GTCs, the relevant provisions of the quotation shall prevail over the GTCs.

These GTCs fully govern the relationship between the Service Provider and the Client. No general purchase condition may prevail or be opposed by the Client to the Supplier and no particular condition communicated by the Client to the Supplier may prevail over the General Terms and Conditions of Sale, unless formally and in writing accepted by the Supplier.

Any reservation concerning the GTCs made by the Client shall, therefore, in the absence of express acceptance by the Service Provider, be unenforceable against the latter, regardless of the time at which it may have been brought to its attention.

Any provisions deviating from these GTCs shall be subject to the express agreement of the Parties, reflected in the Orders confirmed by the Supplier or any other document evidencing the agreement of both Parties.

The fact that the Supplier does not at any given time invoke any condition of these GTCs shall not be construed as a waiver of any subsequent invoking of such conditions.

The Supplier reserves the right to modify these GTCs , the Services and the prices at any time and without notice. These changes will have no impact on current Orders.

The GTCs apply only to professionals with the exception of consumers. As such, the Client acknowledges that he/she is a professional, in accordance with the provisions of the applicable Consumer Code.

ARTICLE 3 – Definitions

“Order(s)” means the order(s) for the Services issued by an authorized representative of the Customer on the basis of the Service Provider’s quotation.

“Contract” : refers to the contract relating to the performance of the Services, formed by these GTCs, the Orders and the quotation expressly referring to the GTCs duly and expressly signed by both Parties.

“Party (ies)” refers individually or collectively to the Service Provider and the Customer.

“Services” refers to the services provided by the Supplier to the Client as described in the quotation.

ARTICLE 4 – Conclusion of the Contract

Unless otherwise agreed in the quotation, the Contract shall be deemed to have been formed and shall take effect between the Parties on the date on which the Supplier receives the Customer’s Order either by email or by post to the Supplier’s address.

No change or modification of the Agreement, including changes to the characteristics of the Services, shall be taken into consideration unless accepted in writing by the Supplier.

This provision cannot be replaced by a verbal agreement.

In the absence of specific provisions in the quotation, the time limits for the execution of the Services are communicated to the Client for information purposes. The time limits for the performance of the Services are in no way guaranteed by the Supplier nor can they engage its liability, nor can they result in an obligation to pay any compensation or penalty for delay, nor justify the cancellation of the Order in question.

ARTICLE 5 – Obligations of the Parties

In general, the Client and the Service Provider undertake to cooperate actively in order to ensure the proper performance of the Contract. Each Party undertakes to communicate any difficulties it may become aware of as the project progresses, to enable the other Party to take the necessary decisions.

The Client undertakes to provide accurate and sincere information and also undertakes to notify the Service Provider of any changes to the information, data, documentation provided.

The Customer shall be solely responsible for any malfunctions that may result from incorrect information. The Customer must maintain a valid e-mail address and postal address.

a) Customer’s obligations

The Client expressly declares that he has received from the Supplier all the information and advice necessary for the performance of the Services and waives any liability on the part of the Supplier as a result.

To enable the Service Provider to carry out its mission, the Client undertakes to :

  • Collaborate closely with the Supplier and provide all information, documentation, services and means necessary for the performance of the Services and undertakes to provide the Supplier with all the elements necessary to meet its obligation, including the personnel dedicated to the proper performance of the Services.
  • Establish detailed specifications that will no longer be modified, unless otherwise agreed by the Parties, after having been approved by the Supplier. If necessary, the Service Provider may intervene in the development of the specifications, jointly with the Client. In the event that changes involve a substantial change in the initial specifications, they will be invoiced in addition to the initial estimate.
  • Location data (movements, GPS data, GSM…).
  • Provide the Supplier with the quotation (dated, signed and stamped).
  • Provide all the documentary, graphic and textual elements necessary for the proper performance of the Contract (in particular in the right formats that can be used according to the media concerned), the Client undertakes to provide all the legal information to be added to the documents and assumes responsibility for providing the content of the documents it publishes.
  • Have the necessary rights to the elements provided above.
  • Actively contribute to the success of the project by providing the Service Provider with all the information and documents necessary for a proper understanding of the needs and the proper execution of the Services within the predefined deadlines.
  • Comply strictly with the technical recommendations and artistic suggestions made by the Service Provider.
  • Guarantee the Service Provider against any action that may be brought against it because of the nature of the data or information (texts, images, sounds) that may have been provided or chosen by the Client.
  • Pay the sums due to the Supplier within the time limits predefined in the quotation and in these GTCs.
  • Inform the Service Provider of any competition with other service providers.
  • Ensure that all necessary means are made available to enable the Supplier to carry out the Services on its premises and/or remotely.

Before each intervention by the Service Provider, the Client undertakes to carry out all the backup procedures necessary to protect and safeguard its data, programs and computer files.

Finally, the Client is solely responsible for the laws and regulations applicable to the Services, in particular with regard to the protection of intellectual property rights, legal notices, protection of personal data, protection of minors (if applicable) and consumer law (if applicable).

b) Obligations of the Supplier

Within the framework of these GTCs and the performance of the Services, the Supplier undertakes to provide itself with all the necessary means and to do everything possible to carry out its mission in accordance with the rules of the art. This obligation cannot constitute an obligation of result, the Service Provider only providing the Services as part of an obligation of means.

  • The Service Provider guarantees that the creations are legally available and are not subject to third party rights for the uses provided for under the Agreement.
  • The Service Provider undertakes to regularly inform the Client of the progress of the project’s implementation, in particular through validations submitted to the Client in the retro-planning as provided for in the quote.

ARTICLE 6 – Terms of execution of the Services and delivery of deliverables

The Client undertakes to provide the Service Provider in a usable form with all the documents necessary for the performance of the Services entrusted to the Service Provider.

Any subsequent modification or additional request requested by the Client will be subject to additional invoicing.

As the performance of the Services entrusted to the Service Provider is directly dependent on the Client’s compliance with its own obligations, the Parties expressly acknowledge that the delivery times referred to in the quotation are given for information only and without guarantee.

A delay in the indicated deadlines shall therefore not give rise to the payment of damages, nor shall it authorize the Customer to terminate the Contract or to refuse the delivery of the Services.

ARTICLE 7 – Prices

The Supplier’s pricing conditions for the provision of the Services are set out in the Supplier’s quotation.

Prices are given as an indication and are therefore subject to change. The invoiced price is that provided for in the Order validated by the Supplier.

The prices of the Services are expressed and payable in Euros and are expressed excluding value added tax and any other tax, the Customer being responsible for the payment of such taxes.

The prices of the Services do not include any travel or accommodation costs that may be charged in addition by the Service Provider to the Client in accordance with the terms and conditions indicated in the quotation.

ARTICLE 8 – Terms of payment

The acceptance of the quotation and the resulting Client Order must be accompanied by the payment of a deposit as indicated in the quotation.

The payment of the deposit will be a condition for the implementation of the Services. The payment of the deposit may be made by cheque, bank transfer or direct debit to the order of the Service Provider.

Payment of the balance of the Services must be made within thirty (30) days of the date of the invoice issued by the Supplier and may be made by cheque, bank transfer, or direct debit to the order of the Supplier.

No discount is provided for in the event of early payment.

ARTICLE 9 – Penalties for late payment

In the event of non-payment on the due date, any amount due will incur late payment penalties. These run from the day following the due date indicated on the invoice until the day of actual and full payment of the sum. The rate of late payment penalties is set at three forgeries of the legal interest rate in force.

These penalties for late payment are automatically due and payable without the need for a reminder by the Supplier.

The Client shall also be automatically liable for a minimum lump sum recovery indemnity of forty (40) euros from the sums due by the Client to the Service Provider.

Finally, in the event of late payment, the Supplier reserves the right to suspend or suspend the performance of the Services provided for in the Order whose payment is subject to the delay.

ARTICLE 10 – Ancillary Costs

In addition, modifications requested by the Client during the course of the project, if they involve a redesign of the project, are to be invoiced.

ARTICLE 11 – Termination

The Supplier may terminate the Services provided to the Customer in the event of a breach by the Customer of its obligations under the Contract, which has not been remedied within fifteen (15) days of notification by the Supplier of such breach by registered letter with acknowledgement of receipt, regardless of the possibility for the Supplier to claim damages.

The Supplier may also terminate the Agreement in the event of non-payment of the unpaid invoice(s) by the Customer.

In the event of termination of the Contract before its expiry by the Client, the latter formally undertakes to regularise and pay the amounts relating to the current timetable, the posts completed or in the process of being completed, as well as the additional services provided. The source files and data created and used by the Service Provider cannot therefore be claimed by the Client without a financial contribution. The deposit already paid will remain the property of the Supplier, constituting compensation for the work undertaken.

ARTICLE 12 – Intellectual Property

The software, data, documentation, processes, methodologies, technologies and documents belonging to the Supplier (hereinafter Intellectual Property Rights) used in the implementation of the Services remain the sole property of the Supplier.

The Service Provider grants to the Client, where applicable and within the limit strictly necessary for the performance of the Services, on a personal, non-exclusive and non-transferable basis, the right to use said Intellectual Property Rights for the duration of the performance of the Services.

The works created by the Supplier for the Client, in the context of the performance of the Contract, remain the full and exclusive property of the Supplier until the invoices issued by the Supplier are fully paid by the Client.

After receipt of invoices by the Supplier, the latter assigns to the Client all intellectual property rights to the works created specifically and at the request of the Client, as part of the performance of the Contract, for their term of protection and for the whole world.

In particular, the Supplier assigns to the Client the following rights :

The right of reproduction includes, but is not limited to, the following :

  • the right to reproduce and/or have the works created in unlimited number, by any process and on any current or future medium, including graphic, magnetic, digital or electronic (interactive or not) ;
  • the right to put into circulation and exploit the works created, commercially or not, the reproductions thus made, in unlimited number, free of charge or against payment, whatever the destination.

The right of representation includes, but is not limited to, the following :

  • the right to disseminate and communicate to any public the elements, media and components of the works created, by any representation process known or unknown to date, for any use whatsoever ;
  • the dissemination of works created by any means, in particular by terrestrial, cable-satellite and any network, and more generally by any means of transmission of digitised or undigitised data.

In the context of the provision of the Services and where necessary, the Client also grants the Service Provider a right to use its software, data and documents, on a personal, free, non-exclusive and non-transferable basis for the duration of the performance of the Services.

The Client undertakes to obtain from any third party, if necessary, the right to grant the Supplier the right to use the software, data and equipment belonging to such third parties for the purposes of providing the Services.

Trademarks and company names

Any use by the Client of the corporate names, trademarks and separate signs belonging to the Service Provider is strictly prohibited unless the Service Provider has given its express prior consent. In the event of the Service Provider’s express prior consent, the Service Provider then grants the Customer a strictly personal, non-exclusive, and non-transferable right to use its corporate names, trademarks and separate signs throughout the world and for the entire duration of the validity of the Contract.

The Service Provider is authorized to use the Client’s corporate name/brand in the course of its activities for commercial promotion purposes.

The Service Provider also reserves the right to mention the achievements made for the Client on its external communication documents, advertising (website, portfolio, etc.) and during canvassing for commercial prospecting.

Eviction guarantee

The Service Provider indemnifies the Customer against any action, claim, demand or opposition by any person claiming an intellectual property right infringed by the provision of the Services, provided that the Customer informs the Service Provider, as soon as it becomes aware of it, of any request, claim or proceeding made or initiated for such reason, by judicial or extrajudicial means. The Client undertakes to provide the Service Provider with all documents and information in its possession as well as all required assistance that may be necessary for its defence.

In the event of proven infringement of the rights of a third party, the Supplier may, at its choice :

  • obtain any license or authorization to allow the Customer to continue to use the Services ;
  • provide an alternative solution allowing the Customer to use the Services in accordance with the Order ;
  • if neither of the two options is feasible, refund the Customer the amounts paid for the Services, less the amounts already paid by the Customer for the period of actual use of the Services.

The Supplier shall have no obligation to pay compensation or any other obligation in respect of any infringement action arising from (a) any use of the Services other than in accordance with the Agreement, (b) any combination of the Services with other services or equipment not provided by the Supplier.

With respect to any software, data or documents used by the Supplier in connection with the provision of the Services, for which the Customer has acquired rights of use from third parties or of which it is the owner, the Customer guarantees the Supplier against any harmful consequences or consequences that the Supplier may suffer as a result of the use of such software, data or documents against any action by a person claiming an intellectual property right or relying on an unfair competition and/or parasitism on such software, data or documents.

ARTICLE 13 – Guarantees

The Supplier warrants that the Services are provided in a manner substantially in accordance with the Order.

Unless otherwise provided by law, any other warranty, express or implied, is excluded.

The Supplier cannot be held liable for any guarantee, in particular when the Customer has modified or caused the modification of the Services or has used services other than those provided by the Supplier, without its prior written consent or when the Customer or third parties have intervened on the elements of the Services without the prior consent of the Supplier.

ARTICLE 14 – Responsibilities

The Supplier’s liability is limited solely to direct damages resulting from a defect in the Services or a breach of the Contract, even if the defect in question was foreseeable at the time of the Order.

In no event shall the Supplier be liable for indirect, incidental or special damages as defined by the case law of the French courts, in particular, the cost of obtaining substitute services, loss of profits, loss of data or periods of immobilisation, whether or not its liability is contractual or tortious and whether or not it is based on the use or operation of the Services, even if the Supplier has informed the Client of the possibility of such damages.

In the event of any breach by the Service Provider of its obligations (failure to perform or improper performance), the Client must notify the Service Provider within eight (8) working days of the breach being noted by registered letter with acknowledgement of receipt. Failing this, the failure to do so shall not be binding on the Supplier.

In the event that the Client has signed a report of receipt of the Services and/or the model of the creation(s) or has validated the receipt of the Services and/or the model, by any means and in particular by the use of the Services and/or the model, the Service Provider shall be deemed to have fulfilled its obligations in accordance with the Contract. The Customer shall then be deemed to have irrevocably waived all claims as of right.

In addition, the Supplier may not be held liable for the non-performance of the Agreement in the event of force majeure as defined in Article 15, and in the event of damage caused by a third party or attributable to misuse or non-conforming use by the Customer of the Services, in violation of the Supplier’s instructions or best practices.

Except for bodily injury or death, and except in the event of gross negligence or wilful misconduct causing proven direct damage or in the event of breach of a material obligation of the Agreement, the Customer acknowledges that the Supplier’s liability is limited to the amount paid for the Services in question.

ARTICLE 15 – Force Majeure

The Parties may not be considered liable or having failed to fulfil their contractual obligations, when the failure to fulfil their respective obligations is due to force majeure as defined by the case law of the French courts. The Contract between the parties is suspended until the causes that gave rise to the force majeure have been extinguished. Force majeure takes into account facts or circumstances that are irresistible, external to the parties, unpredictable and beyond the control of the parties, despite all reasonable efforts to prevent them.

The Party affected by a force majeure event shall notify the other Party within five (5) working days of the date on which it became aware of it. The two Parties shall then agree on the conditions under which the performance of the Contract shall be continued.

ARTICLE 16 – Work

The Supplier declares that it is registered with the RCS, as well as with the URSSAF and that its registrations expressly cover all its activities for the performance of the Services defined in the quotation and/or the Order.

ARTICLE 17 – Insurance

Each of the Parties undertakes to maintain in force, throughout the duration of the Contract, with a reputable insurance company, an insurance policy covering damage to its property and personnel, as well as a policy covering its professional liability, in order to cover the financial consequences of physical, material and immaterial damage for which they would have to be held liable, caused by any event and which would be the fault of its employees and/or potential partner companies during the performance of the Contract.

ARTICLE 18 – Confidentiality

Each Party undertakes, both on its own behalf and on behalf of its employees and partner companies, to maintain the confidentiality of confidential information exchanged (the “Confidential Information”). Confidential Information shall be deemed to include all information of any kind, form or medium to which each Party will have access in the performance of the Contract, and in particular, but not limited to, any means made available to the Service Provider to the Client and to the Client to the Service Provider, any technical, industrial, financial or commercial data, or any other information and documents relating to the activities of each Party.

Confidential Information does not cover documents, data or other information that are :

  • known to one Party on a non-confidential basis prior to their disclosure by the other Party ;
  • that have fallen or will fall into the public domain on the day of their disclosure ;
  • legitimately obtained from a third party not bound by an obligation of confidentiality ;
  • independently developed by the receiving Party that has not had access to any information from the disclosing Party ;
  • disclosed pursuant to a legislative or regulatory provision.

Each Party undertakes :

  • to apply to the Confidential Information the same protective measures as those it applies to its own confidential information ;
  • to communicate the Confidential Information only to its employees and collaborators who may know it in the context of the performance of the Services ;
  • not to disclose, publish or transmit to third parties the Confidential Information, in any form whatsoever, without the prior written consent of the other Party ;
  • to use the Confidential Information only for the sole purpose of performing the Services.

ARTICLE 19 – Non-solicitation

Each of the Parties waives, without prior written agreement, the right to make direct or indirect offers of employment to an employee of the other Party who has worked in the context of the Services covered by this Contract, or to take it up in his service, under any status whatsoever. This waiver is valid for a period of two (2) years from the end of this Agreement.

ARTICLE 20 – Personal data

In accordance with the provisions of the Data Protection Act No. 78-17 of 6 January 1978, as amended, the Customer is the controller in the performance of the Agreement.

The Service Provider acting in the name and on behalf of the Client in the processing of personal data communicated to it by the Client, has the status of subcontractor.

In this respect, the Service Provider undertakes to take the necessary measures to ensure the protection, security and confidentiality of the personal data transmitted to it by the Client.

In accordance with the provisions of the General Data Protection Regulations (RGPD) which came into force on 25 May 2018, the Client has a right of access, rectification, opposition and portability of his personal data. The guarantee of these rights is affirmed in the privacy policy that accompanies this document, which consequently forms a contractual whole.

ARTICLE 21 – Modification of the GTCs – Assignment of the Contract

The Supplier may decide to assign or transfer its rights or obligations under this Agreement provided that the Customer benefits from the Services under the same conditions.

The Supplier reserves the right to modify these GTCs and to notify the Customer. If a substantial change in the terms of the GTCs is not acceptable to the Customer, the Customer shall have fifteen (15) days from the date of notification of the changes by the Supplier to inform the Supplier. In the event of disagreement between the Parties on these modifications, the Parties may terminate the Agreement.

At the end of this fifteen (15) day period, the modifications of the GTCs will be definitively considered as accepted by the Client.

ARTICLE 22 – Applicable law and competent courts

The law of the Contract is French Law. The parties expressly agree that the Vienna Convention on the International Sale of Goods dated 11 April 1980 is not applicable to the Contract.

In the event of a dispute between the Parties, they shall attempt to find an amicable solution to the dispute within thirty days of notification of the dispute from the requesting Party to the other Party by registered letter with acknowledgement of receipt.

If no amicable solution is found between the Parties, the courts of the Paris Court of Appeal shall have exclusive jurisdiction to hear disputes of any kind or disputes relating to the interpretation or performance of this Contract, notwithstanding the plurality of defendants, incidental or summary claims or warranty claims, unless the Supplier prefers to refer the matter to any other competent court.

ARTICLE 23 – Applicable law and competent courts

The Supplier reserves the right not to accept an Order from the Customer when the Supplier has already encountered payment problems (non-payment or late payment) with the Customer for one or more previous Order(s).

ARTICLE 24 – Subcontracting

The Supplier may subcontract all or part of the performance of the Services to subcontractors. In this case, the Service Provider remains responsible for the performance of the Services vis-à-vis the Client.

ARTICLE 25 – General provisions

Previous documents or other agreements

The Agreement supersedes any prior document, written or oral agreement relating to the same subject matter, with the exception of the quotation, the Order and prevails over any contrary provision that may be contained in the documents issued by the Customer.

Autonomy of clauses

If any provision of these GTCs or its application to any person or circumstance is found to be invalid, such invalidity shall not affect the other provisions or applications of these GTCs, which shall remain in force, separately from the provision found to be invalid. To this end, the provisions of these GTCs are declared autonomous.

Notification

Any notification must be made in writing and must be either delivered by hand, sent by registered letter with acknowledgement of receipt, or made by extrajudicial act to the address indicated in the order.

Language of the Contract

The Contract is written in French. A translation into a foreign language may be provided for information purposes. In the event of any inconsistency, only the French version shall prevail between the Parties.