These general conditions of sale (hereinafter “GTC”) are concluded on the one hand between MOBIX, SAS with share capital of 50,000 euros, whose head office is located at En Callou, 31460 CARAMAN, registered with the RCS of Toulouse under the number 523 102 222 and represented by Thomas Soulier in his capacity as Chairman, hereinafter referred to as “the Provider” and on the other hand, any legal person who wishes to benefit from the services offered by the Provider, hereinafter referred to as “the Customer”.
The parties agree that their relations will be governed exclusively by these GTC, possibly supplemented by specific conditions indicated in the contractual documents for the services. These general conditions, which cover all the services offered by the Service Provider, exclude all general and specific conditions of purchase from customers, and can only be modified or supplemented by an addendum accepted by the Service Provider and the Customer.
The Parties agree that the terms below, in the singular or plural, starting with a capital letter, in this contract and all documents relating thereto, shall have the meaning of their definition below, excluding titles and beginning of sentences.
Contract – means these GTC
Service contract – means the specific contract whose provisions govern a project, training services or assistance services and subject to these GTC
Technical costs – means all the costs necessary for the execution of the Mission; they will be designated if necessary in Annex 3 to this contract;
Deliverable – designates the purpose of the execution of each phase of the Services (possibly organized in Batches or Stages) in its written version and whatever the medium;
Delivery or receipt of works – means the delivery of a Deliverable by the Service Provider to the Customer within the deadlines and forms agreed in this Contract and / or its appendices;
Lot(s) – designates one or more divisions of the Mission; a Lot can generate several Deliverables;
Mission – refers to all of the Consulting and Expertise Services entrusted to the Service Provider under this Contract which may give rise to the achievement of one or more Batches and / or Milestones consisting of one or more Deliverables.
This Agreement comes into force on the date of signature by the Parties; it will be renewed by tacit agreement unless terminated by one of the Parties within thirty days preceding the date of the end of the Mission indicated in the appendices. This denunciation must be sent to the other Party by registered letter with acknowledgment of receipt.
At least one (1) month before the end of the duration of the Contract, the Parties will come together to agree on the terms and conditions in the event of continuation or renegotiation of this Contract; after these discussions, only the annexes can be modified.
This Agreement may be modified by mutual agreement between the Parties, by way of an amendment, to incorporate:
- changes resulting from the intervention of a legislative or regulatory text of which the Parties undertake to keep each other informed (changes in public policy apply automatically to the Parties),
- any other modifications deemed useful by the Parties and defined jointly between them.
TERMS OF PERFORMANCE OF SERVICES
The appendices to the Service Contracts must list, in addition to the various Lots, the various associated Deliverables if necessary.
These Deliverables must be described precisely and must also include the acceptance schedule, in the event that acceptance of the work has been agreed between the Parties.
In the event that the Customer wishes to modify or extend the Services requested from the Service Provider during the execution of a Service Contract, the Customer must notify it in writing, specifying specifically the extent and the characteristics of the modifications.
The Service Provider will only undertake the corresponding supplements or modifications after having received the prior written consent of the Customer. This agreement will be the subject of an addendum to the corresponding Service Contract.
When a deadline in days is indicated in a Service Contract, these are working days unless otherwise specified. However, when a deadline expires on a Saturday, a Sunday, a public holiday or a non-working day, the deadline is extended until the end of the first working day following.
In the event that one of the Parties becomes aware of an event or of any fact, including if it is attributable to itself, likely to delay the execution of all or part of the Services under a Service Contract, this Party undertakes to notify the other Party in writing without delay. The Parties must then consult on the means which could make it possible to limit the delay and possibly jointly establish a new timetable for completion.
To be valid, all orders must be confirmed in writing. The order can be made by returning the quotation or the offer from the Service Provider duly signed and bearing the handwritten mention “good for agreement”. The order can also be made by sending a document to the Customer’s header and mentioning in particular: the nature of the service, the quantity, the agreed price, the terms of payment (if they have been the subject of a negotiation making lapses the payment conditions defined in these general conditions of sale), the start and end dates of the service, as well as the place of performance / delivery of the service if it differs from the place of invoicing.
If, during a previous order, the Customer has evaded one of its obligations (default or late payment, for example), a refusal of sale may be made against him, unless that Customer provides satisfactory guarantees or payment on order.
OBLIGATIONS OF THE PARTIES
In addition to the obligations payable by the Customer as indicated in the Service Contract, it is the Customer’s responsibility to:
- provide the information necessary for the performance of the Services entrusted, in particular to provide support for any architectural issues;
- put the Service Provider in touch with all the people concerned by the project in question;
- provide the only logistical means necessary and sufficient for the execution of the Service;
- save your data before, during and after the mission. The customer remaining responsible for the integrity of his data;
- ensure follow-up of the Service by making all necessary comments in writing.
The Customer finally agrees to make available to the Service Provider the list of contacts from his network.
Obligations of the Provider
The Service Provider undertakes to provide the Services defined in this Contract in the applicable industry rules for the type of Service to be provided and in accordance with the laws, regulations and professional standards governing its activities.
The Service Provider undertakes to notify the Customer as soon as possible, in particular on receipt of the specifications and / or the expression of needs, if the information in its possession is not sufficient to carry out the expected Mission.
If the Service Provider is aware of an event or any fact likely to delay the performance of all or part of the Services, he must, as soon as he becomes aware of it, notify the Client by any means he deems appropriate . The Parties can then consult on the means to be implemented to limit or avoid the delay announced.
The terms of after-sales service (warranty) are specified on MOBIX quotes for fixed-price services including software development.
The Service Provider is bound by an obligation of means as to the performance of the services within the agreed deadlines.
Excluding gross negligence on the part of the Service Provider and compensation for bodily injury, the Service Provider’s liability is limited to direct material damage resulting from the Service. This liability will be limited to the amount of the Service.
Amount of the Mission and invoicing
The total amount of the Mission is indicated in the Service Contract.
The balance of the total amount must be paid at the end of the Mission upon presentation of the final invoice.
The prices invoiced are those established on the day of the order on the basis of the economic conditions in force. Unless expressly stated in the prior offer, they are valid for a maximum of 1 month.
In accordance with article art-293B of the CGI, VAT is not applicable to the prices offered and invoiced.
Whatever the method of payment agreed between the parties, payment will be considered as made only after actual collection of the price.
In the event of partial payment, this will be charged in priority to any late penalties, then to the current due dates in decreasing order of seniority.
Rules and penal clause
Invoices are payable upon receipt of invoice; the valid means of payment will be specified in the Service Contract.
In accordance with article L441-6 of the French Commercial Code, in the event of late payment after the due date appearing on the invoice, it will be automatically applied to penalties equal to the rate applied by the European Central Bank to its most recent refinancing operation, increased by 10 points.
Late penalties are due without the need for a reminder. In addition, by application of article D 441-5 of the Commercial Code, any delay in payment will automatically result in the benefit of the Service Provider the payment of recovery compensation set at 40 euros.
In the event of non-payment, even partial, at the due date, the Service Provider reserves the right to terminate the contract or suspend the execution of the current services.
Each Party appoints a contact person responsible for monitoring the proper application of the Service Contract and to whom all correspondence must be addressed.
These contacts will be designated in the appendices to the related service contract.
Each of the Parties may at any time notify the other of the change in the person of its correspondent. Each correspondent may at any time notify the other correspondent of the name of their delegate. In the event of delegation made by the correspondent, all correspondence must be sent to him in copy.
No correspondence causing a delay may be addressed to a delegate of the correspondent.
INTELLECTUAL PROPERTY RIGHTS
The Service Provider retains ownership of its know-how and methods used in the execution of the Missions.
The Service Provider declares to be the legitimate holder of all the rights of use and / or intellectual property relating to the elements which it could be likely to use and / or be brought to make available to the Customer.
It has also been agreed between the Parties that all elements, including, but not limited to, reports, programs, source code, object code, manuals, other documentation, as well as all media, whether in written form or in any other form readable by man or by machine, made by the Service Provider under the Service Contract remain the property of the latter. Consequently, the Provider will be able to enjoy moral and property rights over these elements as it sees fit.
The economic rights include in particular the rights of representation, reproduction and exploitation may be used by the Service Provider as it sees fit or by an authorized third party or assignee for the duration of literary property, in all languages and all countries, by all current or future processes and for all current and future projects.
Consequently, the Customer is prohibited from reproducing or exploiting, directly or indirectly, all of the creations resulting from the service.
The fact that a Party tolerates a situation, whether temporarily or permanently, of not exercising a right, or of exercising it only with delay, cannot be considered as a waiver of its rights, and the partial exercise of a right will not prevent from exercising this right again or in the future or from exercising other rights. Any waiver of a right will have effect in any event only if it is expressed unequivocally and in writing by the person who can legally bind the Client.
Working conditions of the personnel of the Service Provider
The Service Provider undertakes to comply with all of the legal and contractual provisions applicable to its personnel.
The Parties undertake to enforce and respect the health and safety rules as defined by the Labor Code and in particular those applicable to work carried out in an establishment by outside companies.
Fight against illegal work
The Service Provider declares on honor that he meets the obligations of the legal provisions relating to the fight against hidden work. As such, he undertakes to have the Services performed only by persons regularly employed with regard to articles L.1221-10, L.3243-2 and R.3243-1 of the Labor Code.
The Customer has concluded the Service Contract based on the expertise and experience of the Service Provider.
Consequently, the said Service Provider is authorized to subcontract all or part of the Missions, subject of the Service Contracts subject to the prior written agreement of the Client.
If the Client authorizes him to subcontract, the Provider remains fully and severally liable vis-à-vis the Client, for all or part of the Services entrusted by him.
NON-TRANSFERABILITY OF THE CONTRACT
The Client has concluded this Contract, as well as the Service Contracts arising therefrom intuitu personae in consideration of the Service Provider, its know-how and experience.
Consequently, the Client agrees not to give the Provider prior and written consent to assign and / or transfer, in whole or in part, regardless of the legal form used in this contract to a third party.
Termination for non-performance
During the initial term and during any renewal periods, each Party may automatically terminate this Contract in the event of the non-performance by the other Party of any of its essential obligations and if it is not not remedied this non-execution within one (1) month following a formal notice notified to this effect by registered letter with acknowledgment of receipt.
Consequences of termination
In the event of termination of the Contract, each Party shall be released from the other from all obligations due under the performance of the terminated Contract, without prejudice to any liability actions or warranty claims available to it.
However, the Client will be required to pay the invoices corresponding to the Compliant Services already performed and the Provider will be required to deliver all the goods and services and to perform all the Services for which the Client has paid the payment.
Confidentiality of information
The Parties agree to the strictest secrecy on all the information (in particular technical, financial or organizational) entrusted and / or to which they would have access within the framework of this Contract. They undertake to ensure that this confidentiality is respected by their staff, employees or any subcontractors.
“Confidential information” does not enter into information that is regularly known and without confidentiality before it is communicated as confidential information, information developed by one or other of the Parties independently, information which has fallen into the public domain before or which falls there without the Parties having committed any fault.
Each Party, recognizing that any disclosure would seriously prejudice the interests of the other Party, will therefore ensure the protection of any information and any documents entrusted by the Party concerned, with as much care as if it were confidential data relating to its own business.
For example, each of the Parties undertakes that all the information transmitted may not be used (apart from the performance of these conditions), published, or communicated by it or one of its employees or subcontractors, by any means, in any form and in any way, and to ensure their safety by taking all necessary measures.
As of the end of the Contract, or at the first request of the Party concerned, the other Party must return all of the media containing the latter’s confidential information, and undertake in writing to destroy the above information irreversibly.
This clause will continue to bind the Parties for a period of two (2) years from the end of this Agreement, and whatever the cause.
Confidentiality of the Contract
This Agreement is strictly confidential. None of the Parties may refer to the contractual documents referred to herein without the express prior agreement of the other Party, unless one of these Parties needs to justify to the Tax Administration the documents entered in execution of these, or for the purpose of access by Chartered Accountants, Statutory Auditors, supervisory authorities or control bodies of each Party, or in the context of any legal proceedings and / or expertise, when this lifting of confidentiality is dictated by forced execution or non-performance of the Contract.
COMPUTER LAW AND FREEDOMS
The Parties undertake to comply with the provisions of the Data Protection Act of January 6, 1978, as amended by Law No. 2004-801 of August 6, 2004.
The Service Provider undertakes to implement the appropriate measures to protect personal data against dissemination or unauthorized access as well as to act only on the sole instruction of the controller, namely the Customer. The Service Provider undertakes to provide him with any information useful to the CNIL formalities to which he is subject.
When he intervenes on personal data, within the framework of the execution of the present, the Provider undertakes to respect and to have respected by his employees and subcontractors, and this in an absolute way, the following obligations:
- not to take any copy of the data and supports, except for the execution of the present,
- not to use the data and information for purposes other than those herein,
- not to disclose the data or information to third parties to the Contract,
- take all measures to avoid any misuse or fraudulent use,
- take all measures, in particular material security, to ensure the conservation of the data and information processed,
- to process and host data exclusively on the territory of the European Union,
- purge the data at the Customer’s first request, and justify this to the latter.
Failure by the Service Provider to comply with one of the above-mentioned obligations may constitute a cause for unilateral termination for fault, on the initiative of the Client.
It is agreed between the Parties that the occurrence of an event of force majeure as described by French law and jurisprudence will release the Party invoking it from the performance of its obligations under this Contract. The Party availing itself of the exception of non-performance for force majeure must notify the other Party by registered letter with acknowledgment of receipt within 8 (eight) working days from the occurrence of the event constituting force major. In the event that the Party invoking it does not meet these deadlines, the other Party may refuse this exception.
In the event that the occurrence of a force majeure event prevents one of the Parties from performing its obligations for more than one (1) month, the other Party may terminate the Contract without notice by registered letter with acknowledgement reception. In this case, the Services already performed will remain due to the Service Provider.
The Service Provider undertakes to have taken out, and to maintain in force throughout the duration of the Contract, an insurance policy, with a notoriously solvent insurance company, intended to cover all the risks that may arise in the context of the performance of the Services subject of these, guaranteeing the pecuniary consequences of tort, quasi-tort and contractual civil liability for bodily, material, immaterial damage that may be suffered by the Customer, because of its employees, its goods and of any person for whom he could be recognized civilly responsible
The Service Provider undertakes to communicate to the Customer, on request, and on each anniversary date of this Contract a certificate, dating from less than three (3) months for the new annual period of cover for his civil liability insurance n ° 151.329.050 underwritten by GAN ASSURANCES.
The Service Provider may, after the Customer’s agreement, publish articles relating to the Services performed under this Contract or involving the name, name, brands and logos or other names, commercial or not, of the Customer, expressly or implicitly , after prior written agreement from the latter.
Subject to the express prior authorization referred to above, the Service Provider undertakes to strictly comply with the possible graphic charter of the Customer, to integrate identically the visuals reproducing the brand and / or the standard logo of the Customer without modification.
This Agreement contains all of the obligations of the Parties, the provisions contained therein being exclusive of all others, canceling and replacing all proposals, agreements, protocols, or general conditions of sale of the Service Provider, and prevailing over any other communications between the Parties, relating to the subject matter hereof, whether or not made during their execution.
No subsequent modification of the Contract can take place if it is not recorded in a document signed by the Parties and which will be annexed as an Amendment to the present.
Partial invalidity of the Contract
If any of the provisions of this Agreement are canceled or invalidated, such invalidity or invalidation will not result in the nullity or invalidation of the other provisions, unless otherwise decided by the courts. In such a case, the Parties agree to replace the void or illegal clause, after negotiation in good faith, with a valid clause reflecting their initial intention.
Tolerance – No waiver
The fact that one of the Parties did not require the application of a clause, can in no case be considered as an abandonment of its right to observe subsequently, at any time and without notice, each of the clauses and of the conditions herein or as a waiver of the rights arising from said clause. Tolerating a situation therefore has no effect in granting acquired rights.
SETTLEMENT OF DISPUTES AND APPLICABLE LAW
This contract is governed by French law. For any dispute relating to the present, the Parties will endeavor to find an amicable solution before any procedure.
In the absence of an amicable settlement, the Toulouse Commercial Court, which expressly assigns jurisdiction, regardless of the defendant’s domicile, as well as in the event of a call in warranty or multiple defendants, may be seized.
The Parties elect domicile at their head office, as it appears in appearance. If you have not notified the other Party of the change in their registered office, any notification made to the last known address will be considered valid and made.