GENERAL TERMS AND CONDITIONS FOR THE PROVISION OF SERVICES (NON-ESSENTIAL, NON-PCI)
Article 1: DEFINITIONS
For the purposes hereof, each of the expressions below shall have the meaning given in its definition, namely:
“Client”: refers to the Client as identified in the Purchase Order.
“Documentation”: refers to the documentation pertaining to the use of the Services, including all user guides and manuals, in French unless the Client expressly agrees to another language, and any other document, whether on paper or in digital format, which may be supplied by the Service Provider to the Client for the purposes of performing the Services.
“Data”: refers to all Client data submitted to the Service Provider as well as data collected, generated, handled or modified by the Service Provider, in particular Personal Data.
“Personal Data”: refers to any information relating to an identified or identifiable natural person (data subject); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity.
“Sensitive Data”: refers to Personal Data defined as sensitive within the meaning of the European General Data Protection Regulation (hereafter “GDPR”), as well as information covered by professional secrecy.
“Service Provider”: refers to either the Service Provider(s) or the Supplier(s) identified in the Purchase Order.
“Service(s)”: refers to the services that the Service Provider undertakes to provide to the Client, throughout the duration of the Contract and in compliance with the provisions of said Contract.
“Service(s)”: refers to any product or Service, in particular any equipment or consultancy service and, more generally, any service provided, made available or carried out by the Service Provider under the terms of the Contract. The definition of Service includes Documentation.
“EBCP”: refers to an Emergency and Business Continuity Plan.
Article 2: PURPOSE
These General Terms and Conditions of Purchase (hereafter referred to as the “GTC”) apply to any Order (hereafter referred to as the “Order(s)”) for services (hereafter referred to as the “Services”), evidenced by a purchase order (hereafter referred to as the “Purchase Order”) and placed by MONEXT (hereafter referred to as the “Client”), to any service provider (hereafter referred to as the “Service Provider”). The contractual relationship between the Client and the Service Provider is governed exclusively by these GTC, excluding the Service Provider’s general terms and conditions of sale or any exchanges between the Client and the Service Provider prior to or following the Order, regardless of the format.
The beginning of the performance of the Order by the Service Provider shall be deemed an acceptance of the Order and of these GTC.
Article 3: DATE OF EFFECT-TERM
The Contract takes effect on the date on which it is signed by the Parties, unless expressly stated otherwise in the Purchase Order. The term of the Contract is defined in the Purchase Order. More generally, it will remain in force for as long as the Service Provider performs a Service for the Client. Unless otherwise specified, the term of the Contract is one (1) year, renewable by tacit agreement every 1st January. The Parties can terminate the Contract by sending a registered letter to the other Party, giving three months’ notice prior to 1st January each year.
Article 4: GUARANTEES
3.1 Guarantee of compliance
The Service Provider guarantees that the Service complies with the specifications set out in the Contract and with the Client’s specific requirements brought to the Service Provider’s knowledge upon signature of the Contract, as well as with the legislative and regulatory provisions in force, throughout the term of the Contract.
3.2 Guarantee of proper performance
The Service Provider guarantees the proper performance of the Services provided, the continuity of their performance, and the existence of back-up solutions in the event of business continuity impairment; the implementation of such solutions being under the responsibility of the Service Provider.
Article 5: PRICES AND FINANCIAL CONDITIONS
The prices and financial conditions of the Contract are defined in the Purchase Order.
The Client undertakes to pay the agreed price. The price is expressed in Euros exclusive of tax and includes all costs and expenses necessary for the Service Provider to perform the Services, including travel and accommodation costs. The price set out in the Purchase Order is fixed and binding for the entire duration of the Purchase Order.
In the event of non-payment by the due date, any outstanding amount owed to the Service Provider and not disputed by the Client shall bear interest at a rate equal to three times the legal interest rate, and will give rise to the payment of a fixed-rate penalty for recovery costs of 40 Euros as provided for in article L. 441-10 of the French Commercial Code, as of the first working day of non-payment. The interest applied for late payment is calculated on the amount of the invoice, inclusive of all tax. Interest is not owed if the Client’s late payment is due to the Service Provider, or to a disagreement concerning the invoice, or an event constituting a case of force majeure as defined in the “Force majeure” article of the General Terms and Conditions. In the event of a late payment, the Service Provider shall immediately inform the Client of the application of this clause.
Invoices must be sent to the Client according to the terms and conditions set out in the Purchase Order.
Invoices must be sent by post to our head office:
5, place de la Pyramide
92088 Paris La Défense Cedex
Invoices can also be sent by email to email@example.com.
Invoices are paid by bank transfer within forty-five (45) days from the end of the month following the date of issue.
Where applicable, invoices must be prepared on the basis of a business report drafted by the Service Provider and approved by the Client.
Article 6: SUPPLIER OBLIGATIONS
The Service Provider shall provide the Client with all necessary advice, warnings and recommendations, particularly as regards any potential limitations of the Service.
The Service Provider shall provide the Client with all the relevant information on the characteristics and technical capabilities of the Service, the conditions of its performance, its compliance with regulations and its ability to incorporate regulatory developments.
The Service Provider undertakes to advise the Client should the latter make any additional or new requests during the performance of the Contract.
The Service Provider undertakes to notify the Client of any technological innovation or of the availability of any new Service that would be better suited to its requirements which may arise during the performance of the Contract, so that the Client may assess its value in reference to the Contract.
6.2 Business relationship
The Client and the Service Provider agree to work closely as part of their business relationship.
The Parties shall appoint a person to be responsible for the smooth performance of the Contract.
The Service Provider undertakes to:
- update the Client regularly regarding the proper performance of the assignment and the progress of the work,
- report regularly,
- notify the Client of any difficulties that it may identify in light of its experience, throughout the provision of the Services, so that they may be dealt with as quickly as possible.
The Client undertakes to notify the Service Provider as soon as possible of any issues encountered during the provision of the Services. The Client undertakes to provide the Service Provider with all assistance necessary for the proper provision of the Services.
Article 7: INTELLECTUAL PROPERTY
7.1 Authorisation to use elements of the Service Provider’s intellectual property
The Client is authorised to use the elements of intellectual property made available by the Service Provider as part of the provision of the Services, where necessary (e.g. Documentation), for the statutory term of protection of said intellectual property elements (hereafter referred to as “Intellectual Property Elements”), unless otherwise stated in the Purchase Order.
In the event that the Intellectual Property Elements are not the property of the Service Provider, the Service Provider undertakes to secure authorisation for use for the Client, at the Service Provider’s own expense. This authorisation must be submitted to the Client immediately upon request.
This authorisation for use is granted for the Client’s use of the Intellectual Property Elements on all its sites (including the sites of Beneficiaries and their respective users).
7.2 Distinctive signs
7.2.1 Advertising – Communications
Each of the Parties undertakes to comply with all the intellectual property rights of the other Party in its names, corporate names, brands, trademarks, logos, signs, drawings, models (“Distinctive Signs”) and shall refrain from suggesting any analogy in the public’s mind, for any purpose whatsoever.
The Service Provider may not use the Client’s reference without the Client’s prior written approval. In the event that this use is authorised by the Client, in event of changes to the Client’s Distinctive Signs, the Client shall provide the Service Provider with the new Distinctive Signs and/or the new graphic charter for use.
Each Party undertakes to notify the other Party immediately of any unlawful use of its Distinctive Signs by said Party, that it may observe as part of the provision of the Services or the performance of the Contract.
Upon termination of the Contract for any reason whatsoever, each Party shall cease all use of the intellectual property elements of the other Party, with the exception of strictly retrospective use.
7.2.2 Use for the provision of the Services
As part of the performance of the Contract, and only insofar as the use of the Client’s Distinctive Signs is necessary for the provision of the Services, the Client may grant the Service Provider, on a case-by-case basis, the right to reproduce its Distinctive Signs (including where applicable those of its Beneficiaries), on a personal, non-exclusive and non-transferable basis (except, where applicable, for the benefit of its subcontractors, subject to compliance with the article “Subcontracting”).
This authorisation of use is subject to prior written approval from the Client, stipulated by the Parties on the Purchase Order or in a separate document.
In any event, this use must be (i) in compliance with the graphic charter(s) provided by the Client and (ii) for the sole purpose of providing the Services covered by this Contract, in France and for the term of the Contract.
It is expressly agreed by the Parties that any breach by the Service Provider of the provisions of this article constitutes a serious failure that may result in the early termination of the Contract under the conditions set out in the article “Termination - Cancellation” of the Contract.
7.3 Guarantee of peaceful enjoyment
It is expressly agreed by the Parties that the guarantee of peaceful enjoyment applies to the Intellectual Property Elements provided as part of the Contract.
As a result, the Service Provider guarantees:
- that it duly holds all the rights (in particular of use, distribution, operation, etc.), possibly by license and/or transfer, of all the Intellectual Property Elements granted as part of the Contract,
- that it has not transferred or granted, on an exclusive or non-exclusive basis, and will not grant or transfer all or part of the intellectual property rights to the Services and/or their Documentation, in breach of the Contract,
- that the Intellectual Property Elements and the Documentation do not constitute an infringement of a pre-existing work.
In this respect, the Service Provider shall safeguard the Client from any proceedings, claims, complaints or opposition from any person claiming an intellectual property right that the performance of the Contract allegedly infringes, or an act of unfair and/or parasitic competition (hereafter referred to as the “Proceedings”).
In such cases, the compensation and expenses of all kinds incurred by the Client (including legal fees), any damages awarded against the Client and any amounts paid in settlement, will be paid by the Service Provider.
It is understood by the Parties that the total of these amounts may not be limited by the effect of a clause limiting liability, stipulated in the Purchase Order in particular.
In the event that use is prohibited as a result of Proceedings, or results from a transaction signed with the claimant of the Proceedings, the Service Provider shall, at its own expense, after consultation with the Client, either (i) obtain authorisation for the Client to continue to use the Intellectual Property Elements and/or Documentation concerned, or (ii) amend and/or replace the Intellectual Property Elements and/or Documentation concerned to equivalent specifications and quality, or (iii) if options (i) and (ii) are unachievable, reimburse the Client for the amounts paid in respect of the infringing element, without prejudice to all other rights and contractual and legal remedies, in particular damages to which the Client may be entitled.
The Service Provider guarantees that on the date of signature of this Contract, to its knowledge there are no Proceedings brought by a person claiming an intellectual property right or an act of unfair and/or parasitic competition with regard to all Intellectual Property Elements and Documentation granted or transferred as part of the Contract.
Article 8: CONFIDENTIALITY
The Parties undertake to keep confidential any information of which they become aware upon the signature or performance of the Contract (hereafter referred to as “Confidential Information”).
Each Party undertakes to take all necessary measures to ensure compliance with this obligation of confidentiality with regard to the Confidential Information.
The Party receiving the Confidential Information undertakes not to use it for purposes other than the performance of its obligations under the Contract.
It is understood by the Parties that the consequences of non-compliance with this article on “Confidentiality” in the Contract may not be limited by the effect of any clause limiting liability, stipulated in the Purchase Order in particular.
The stipulations of this article on “Confidentiality” in the Contract do not concern Confidential Information for which the receiving Party can provide proof:
- that it entered the public domain prior to being transferred by the issuing Party or that it entered the public domain without the receiving party having breached the provisions of the Contract; or
- that the receiving Party was already aware of it before disclosure by the issuing Party; or
- that it was received by a third party lawfully, without restriction and/or breach of the Contract; or
- that it was independently prepared by either Party using sources other than the Confidential Information; or
- that it was expressly requested from the receiving Party by an administrative, judicial, government, regulatory or supervisory authority, and solely with regard to that authority, provided that this Party is required to comply with the request either pursuant to applicable legislation and regulations, or as part of judicial, administrative, disciplinary or arbitration proceedings.
As the Client is subject to the provisions of articles L. 511-33, L. 511-34 and L. 571-4 of the French Monetary and Financial Code relating to professional secrecy, the breach of which is punishable by the penalties set out in articles 226-13 and 226-14 of the French Criminal Code, the Service Provider undertakes to keep information covered by professional secrecy confidential.
The Service Provider undertakes to ensure that its employees, any subcontractors and more generally any person acting under its responsibility comply with all of the aforementioned obligations. It confirms that these persons have signed a confidentiality agreement that sets out said obligations. This obligation is applicable with heightened vigilance to all the Services conducted on Monext’s premises.
At the term of the Contract, the Service Provider undertakes to return to the Client, free of charge, any element or information disclosed for the performance of the Contract.
Unless otherwise agreed in writing, the Parties shall be bound by this confidentiality obligation throughout the performance of the Contract and for a period of five (5) years from its termination for any reason whatsoever. The information covered by banking confidentiality requirements shall remain confidential for an unlimited period.
Article 9: PERSONAL DATA PROTECTION
The Parties undertake to comply with the applicable personal data protection regulations, including Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, which entered into force on 25 May 2018 (hereafter referred to as “GDPR”). The Parties agree to aim for a high level of personal data protection and security and to amend this Contract in light of any regulatory developments in the common interest of both Parties.
Article 10: SECURITY
10.1 General principles
For the performance of the Contract, the Service Provider shall ensure the complete security of computer processing and/or the Client’s Data, and/or Confidential Information, Personal Data and Sensitive Data, in accordance with the security measures set out in this Contract.
The Service Provider undertakes in particular to protect Data against any accidental or unlawful destruction, accidental loss, corruption, disclosure, introduction of malware or unauthorised access, in particular in cases where data processing involves the transmission of data in a network, as well as against any form of unlawful processing or disclosure to unauthorised persons.
The Service Provider undertakes to comply with all the legislative and regulatory provisions concerning data protection applicable to the Client (such as in particular personal data protection and banking confidentiality compliance).
The Service Provider undertakes to provide the Client with its security policy as well as the outcomes of audits of its departments and to indicate the location of the servers used to host the Data.
The Service Provider shall implement all systems to ensure the confidentiality, archiving, near-immediate availability and integrity of the Data processed and to prevent any leaks, where applicable, throughout the performance of the Contract, such as back-up systems.
The Service Provider undertakes, on its own behalf and on behalf of its subcontractors, not to use or disclose Data entrusted to it or of which it has become aware under the Contract for its own benefit or for the benefit of a third party. It undertakes to protect and make available to the Client event logs, and in particular all records of access to the Data, administration tools and applications, on a rolling yearly basis.
It undertakes to notify the Client immediately of any security failure or breach of Data, including Personal Data, which it observes, such as attempts by unauthorised persons to gain access.
The Service Provider shall inform the Client immediately of any investigation or request for investigation from a French or foreign administrative or judicial authority requiring access to the Client’s Data.
In this regard, the Service Provider undertakes to:
- implement and maintain the expertise and technical and organisational measures and a minima in line with the state of the art to ensure the security of the Client’s Data and information system in all its components (availability, integrity - by protecting them against any breach, in particular modification or destruction -, confidentiality with regard to unauthorised third parties, traceability of all processing completed and authentication of all persons);
- appoint a security manager in charge of ensuring the security level set out in this Contract.
Article 11: LIABILITY AND INSURANCE
The Service Provider shall be held liable for all direct or indirect harmful consequences resulting from actions, omissions, faults, errors or failings that it may commit in the performance of this Contract.
The Service Provider declares that, for the entire term of this Contract, it has taken out and retained an insurance policy with a reputedly solvent insurance company established in the European Union covering the financial consequences of its tort and contractual liability for damage of any kind caused to the Client and/or any third party.
The Service Provider shall provide the Client with a valid insurance certificate:
- upon signature of this Contract;
- each year before 31 January;
- within ten (10) days, at the Client’s request.
The insurance certificate states in particular the period of validity and the maximum cover per claim.
The Service Provider undertakes to pay the corresponding insurance premiums and to provide proof thereof to the Client without delay.
The Service Provider undertakes to declare to its insurance company any extension or modification to its risks and business under this Contract.
The Service Provider shall notify the Client of any termination of its insurance policy or any change in insurance company. In the event that the Service Provider is (i) no longer insured, or (ii) can no longer provide proof to the Client that it has taken out an insurance policy that meets the conditions of this article, the Client shall be entitled to terminate the Contract for breach of contract in accordance with the conditions set out in the article “Termination - Cancellation”.
Article 12: SUBCONTRACTING
Notwithstanding the article “Personal data protection” which deals specifically with the outsourcing of Personal Data, the Service Provider shall inform the Client in advance and in writing of any subcontracting planned in connection to the Services, or of any significant change in this regard.
The Service Provider is responsible for the payment of its subcontractors.
The Service Provider is responsible for overseeing the Services that it has subcontracted in order to ensure that its subcontractors comply with all the obligations of this Contract.
The Service Provider is directly and fully responsible and liable to the Client for the proper performance of all the obligations concerning Services entrusted to a subcontractor. The Service Provider shall be liable to the Client for the consequences of any non-performance, sub-standard performance or non-compliance with agreed deadlines that may be attributable to the subcontractor.
The Service Provider ensures that each subcontractor (including its subcontractors of all levels) undertakes to (i) comply with all the applicable legislative, regulatory and contractual provisions, and (ii) grant the Client, the competent authorities and any other person appointed by the Client or the competent authorities the same contractual access and audit rights as those granted by the Service Provider.
More generally, the Service Provider undertakes to oversee the work subcontracted by its subcontractors, in compliance with the policy set out in this article.
Article 13: AUDITS
13.1 Audits initiated by the Client
Throughout the entire duration of this Contract, the Client is entitled to conduct or demand audits each year (including on-site) concerning the conditions of completion and performance of the Services provided and their compliance (i) with the applicable legislative and regulatory provisions and (ii) with the provisions of this Contract.
If the Client entrusts this audit to a third party, this must be an independent external provider which is not in a situation of direct or indirect competition with the Service Provider and which is subject to an obligation of confidentiality. The Service Provider is entitled to refuse the intervention of any provider that does not meet the aforementioned criteria.
13.2 Audits initiated by the competent authorities
The Service Provider acknowledges that the Client’s supervisory and resolution authorities (Autorité de Contrôle Prudentiel et de Résolution in particular or any other equivalent foreign authority), or any other person appointed by them, may also conduct regulatory audits.
13.3 Scope of the audit
As part of these audits, the Client and/or the competent authorities and/or any other person appointed by the Client or by the competent authorities shall enjoy the following rights:
(a) full access to all premises where the Services are conducted (head office, operational centres, etc.), including all relevant devices, systems, networks, information and data used to conduct the Services, in particular related financial information, the Service Provider’s staff and external auditors, and
(b) unconditional rights to inspect and audit the Services outsourced by the Client to the Service Provider in order to monitor said Services and ensure compliance with all applicable legislative, regulatory and contractual requirements.
The Service Provider undertakes to authorise these audits and to cooperate fully with the Client and/or the competent authorities, or with any other person appointed by them, to carry out the audit. In this respect, the Service Provider shall provide as of the first request any information, documents and media required to conduct the audit, including in particular any elements that would provide proof of the Service Provider’s and its subcontractors’ compliance with their obligations.
It is specified that this right to audit may under no circumstances allow any access to data belonging to the Service Provider’s other clients, or to any systems, applications or data not used for the performance of the Services.
13.4 Advance notice
The Service Provider shall be notified of the audit in writing at least twenty (20) working days in advance, (i) unless this is impossible due to a situation of crisis or emergency (such as a security incident affecting the Data) or leads to a situation in which the audit would no longer be effective, or (ii) if a shorter period were imposed by the competent authority.
The Client shall notify the Service Provider in writing, prior to the audit, of the content of the assignment, as well as the names and references of the persons in charge of the audit.
13.5 Coverage of the costs related to the audit
Each Party shall bear the costs it incurs in relation to the completion of the audits.
13.6 Audit results
The findings and/or recommendations of the final audit report will be sent to the Service Provider.
In the event that the audit identifies a serious breach of the Service Provider’s obligations set out in the Contract, the Service Provider shall propose a timetable for the implementation of the recommendations, at its own expense. Should the Service Provider fail to remedy any serious breaches identified in the findings and/or recommendations of the final audit report within a reasonable timeframe (in view of the complex nature of the work to be conducted), the Client reserves the right to terminate the Contract under the conditions set out in the article “Termination - Cancellation”.
In the event of total or partial subcontracting, the Service Provider shall impose clauses on its subcontractors that guarantee the rights of the Client, the competent authorities and of any other person appointed by the Client or the competent authorities to conduct audits of these subcontractors in accordance with the requirements of this article.
Article 14: PREVENTION
The Parties shall review the security conditions requiring compliance under the Contract.
Insofar as articles R.4511-1 et seq. of the French Labour Code are applicable and in order to prevent any risks arising from interference between the two companies’ business activities, the required information shall be shared, a joint prior inspection of the workplaces shall be conducted, occupational risks shall be analysed and a prevention plan shall be drafted in accordance with the provisions of the Labour Code.
The Service Provider also declares that it is aware of the health and safety conditions found in particular in the Client’s internal regulations and undertakes to ensure its own employees’ strict compliance with them. The Client undertakes to notify the Service Provider at least eight (8) days in advance of any relevant changes applicable within its unit.
If, under the terms of the Contract, the Service Provider’s employees are required to enter the Client’s premises, they shall comply with the Client’s operating and security rules (entry and exit checks, issue of a visitor’s badge) and may only be present for as long as deemed necessary, according to working hours set by the Service Provider and during the days and times when the Client’s premises are open.
It is also agreed that any new legislative or regulatory provision in this field shall apply immediately.
Article 15: CONDITIONS OF PERFORMANCE OF THE CONTRACT
The Service Provider shall inform the Client of its corporate, legal and fiscal status.
The Service Provider shall do everything in its power to appoint and retain its staff for the performance of the Contract.
Upon signature of this Contract and every six (6) months until the Contract’s term, in accordance with articles L. 8254-1, D. 8222-5 and D. 8254-2 of the French Labour Code, the Service Provider undertakes to provide the Client with:
- an excerpt from the entry on the trade and companies register (French K bis),
- a certificate of provision of social security declarations and payment of social security contributions pursuant to article L. 243-15 of the French Social Security Code, dating back no more than six (6) months, issued by the social security body in charge of collecting social security contributions, stating the company’s identifying features, the number of employees and the total pay declared during the last period. The certificate is secured by an authentication system issued by the body in charge of collecting social security contributions,
- the list of its employees requiring work permits.
Upon signature of this Contract and every year until the Contract’s term, the Service Provider also undertakes to provide the Client with a tax clearance certificate.
In addition, the Service Provider shall provide the Client with any relevant document proving its approval or accreditation to perform the Services, insofar as the performance of its business requires it to obtain approval or accreditation.
If the Service Provider is not French, the documents and evidence to be provided under this article 20.1 are to be replaced by equivalent documents and evidence valid in the country in which it is established or registered.
The Service Provider undertakes to comply with the provisions set out in article L. 8231-1 of the French Labour Code.
The Service Provider conducts and organises its work freely and independently and enjoys sole responsibility for it. It shall implement all the technical and human resources that may be necessary, of which it shall be the sole judge, in order to provide all its expertise and skills for the successful performance of its assignment.
The Service Provider’s employees act solely in accordance with the Service Provider’s instructions, and remain under its sole authority under all circumstances, under the Service Provider’s sole and full responsibility.
The Client shall refrain from giving any instructions to the Service Provider’s employees in the performance of their assignment.
The Service Provider’s employees shall be overseen at all times by a manager in the Service Provider’s company who will ensure the proper performance of the assignment, discipline and compliance with health and safety rules by all employees under their responsibility. The Client shall be notified of this manager’s name. The manager shall be the Client’s sole contact person, and shall be the only person likely to receive the Client’s observations regarding the performance of the Contract.
The Service Provider undertakes to obtain the Client’s prior written approval before making any substantial changes to the Services covered by this Contract.
The Client enjoys the right to monitor the Service Provider’s performance on an ongoing basis. A service level agreement (SLA) must be formalised in the Contract. It shall specify, including during the guarantee period, service availability, the details of measures to ensure business continuity and the maximum restart time in the event of an interruption following an accident, as well as any other criteria concerning business resumption.
The Service Provider shall comply with the Crédit Mutuel Arkéa Supplier Code of Conduct available at cm-arkea.com
Article 16: TERMINATION
16.1 by notice
In the event of a serious breach by one of the Parties of the obligations of this Contract, which has not been remedied within thirty (30) days upon receipt of the first delivery of the registered letter with acknowledgement of receipt notifying of the breach sent by the other Party, the latter may terminate the Contract, without prejudice to all other contractual and legal rights and remedies, in particular any damages to which it may be entitled.
16.2 without formal notice
The following are also breaches that may justify the termination of the Contract at any time by the Client, without prior formal notice, by registered letter with acknowledgement of receipt, without prejudice to any damages to which the Client may be entitled:
- non-compliance by the Service Provider of the applicable legislative and/or regulatory provisions;
- non-compliance by the Service Provider of the relevant IT security standards or the measures defined by the Parties concerning the management and security of Data, or Confidential Information, Personal Data or Sensitive Data;
- inappropriate subcontracting, for example when subcontracting significantly increases the risks for the Client, or if the Service Provider subcontracts the Services or changes subordinate subcontractors without informing the Client;
- unless otherwise instructed by the competent authority, the withdrawal of any approval or accreditation required for the provision of the Services by the Service Provider; in this event the termination shall take effect on the date of withdrawal of the approval.
16.3 Consequences of termination
In the event of early termination of the Contract for any reason whatsoever, the Service Provider shall reimburse the Client any amounts paid in advance on the basis of Services not performed by the effective date of termination, or on a pro rata basis for partially performed Services.
Termination shall take effect at the end of the reversibility period set out in the article “Reversibility”. In the event of expiry or termination of this Contract for any reason whatsoever, the Service Provider shall provide reversibility services under the conditions set out in the article “Reversibility”, and shall continue to perform the Services until the end of this reversibility period.
Article 17: CANCELLATION - INVALIDITY
Unless otherwise stated, the fact that one of the Parties has not demanded the application of any clause of this Contract may under no circumstances be deemed a waiver of this Party’s rights arising from said clause.
The potential invalidity of any of the provisions of the Contract or part of them shall in no way affect the validity of the other clauses.
Article 18: INTUITU PERSONAE – TRANSFERABILITY
This Contract is entered into on the basis of trust placed in the Service Provider. The Contract may under no circumstances be transferred or assigned in full or in part, whether in return for payment or free of charge, without the Client’s prior written consent.
It is expressly agreed between the Parties that, for the application of this clause, partial contributions of assets, full asset transfers, mergers, demergers, transfers of business capital and more generally any transaction resulting in a change of control (the concept of control being that defined in article L. 233-3 of the French Commercial Code) shall be deemed a transfer.
Article 19: AGREEMENT OF PROOF - ELECTRONIC SIGNATURE
In accordance with articles 1363 et seq. of the French Civil Code, the Parties set the rules of admissible proof between them when an electronic signature procedure is used to sign the Contract.
The Parties accept that each Party expresses its consent by any means, in particular by OTP, SMS or click, at the time of electronic signature of the Contract. These procedures are admissible before the courts and constitute proof of the data and elements they embody as well as the signatures they express, in accordance with the requirements of article 1367 of the French Civil Code.
The Parties agree that:
- the identification elements used in this procedure, and
- the time-stamping elements, and
- the contracts signed and archived electronically, the emails and acknowledgements of receipt exchanged between them,
are admissible before the courts and constitute proof of the data and elements that they contain and of the authentication procedures they express.
The Parties acknowledge that this Contract signed electronically shall have the same probative value as a written document signed on paper.
The Parties agree that digitised paper contracts shall be deemed faithful and lasting copies that constitute proof of the data and elements they contain.
As part of the relationship between the Parties, evidence of connections, computer recordings and other identification elements shall be established where necessary, supported by the connection logs maintained by the Parties, in the absence of evidence to the contrary.
It is specified that the Client uses Docusign, an electronic signature service provider. In accordance with the law and the state of the art, this service provider uses the most appropriate means to ensure the integrity of the creation and archiving of electronically signed documents, and the protection and confidentiality of the data collected.
Docusign complies with European Regulation 910/2014, French law 2000-230 and its implementing decree 2001-272.
The Parties acknowledge that this Contract signed electronically shall have the same probative value as a written document signed on paper. As a result, the Parties accept that the computer recordings made upon signature of the Contract shall prevail.
The Parties can download the electronic original of the signed contract should they so wish, directly from Docusign.
Article 20: FORCE MAJEURE
The Parties may not be held liable in the event of impossibility or delay in the performance of the Contract due to a case of force majeure as defined in article 1218 of the French Civil Code.
It is expressly agreed that internal strikes affecting either Party do not constitute a case of force majeure.
In the event of force majeure, the affected Party shall inform the other Party immediately, by any means in writing.
In this event, the Parties shall meet as soon as possible with a view to implementing solutions that will allow the Contract to continue.
Should a case of force majeure postpone the performance of the obligations set out in this Contract for a period exceeding three (3) months, each Party may terminate this Contract, or the Services concerned, by registered letter with acknowledgement of receipt, without the right to claim any compensation from the other Party.
Article 21: CONFLICTS OF INTEREST
The Parties undertake to identify, assess and manage any conflicts of interest likely to interfere with, influence or modify the signature or performance of the Contract.
Such a conflict may arise from situations including but not limited to economic interests, friendly or family ties or relations of any other kind, any joint personal interests between the Parties, their legal representatives, the administrative or management bodies, their employees or agents responsible for signing, monitoring, steering and performing the Contract, their close relations and/or families.
Each Party undertakes to ensure that its employees, directors and officers comply with this clause.
In the event of a conflict of interest, whether potential or confirmed, each Party shall notify the other Party immediately at the address of its head office. The Parties shall decide together, on a case-by-case basis of any measures to be taken to put an end to this potential or confirmed conflict of interest and the Party concerned undertakes to implement said measures within the agreed timeframes.
Any failure to come to an agreement or to implement the aforementioned measures constitutes a serious breach which entitles either Party to terminate the contractual relations under the conditions defined in the article “Termination - Cancellation” of this Contract.
Article 22: THE FIGHT AGAINST CORRUPTION
The Parties declare their strict compliance with anti-corruption provisions applicable in the public and private sectors codified in particular in articles 432-11, 433-1, 435-1 et seq., 445-1 et seq. of the French Criminal Code, L. 442-1 et seq. of the French Commercial Code and French Law 2016-1691 of 9 December 2016 and/or any text that may supplement and/or replace them.
In this respect, the Parties, their employees, directors and officers shall refrain from proposing or receiving without right, directly or indirectly, offers, promises, donations, gifts, or any other advantage, for themselves or others, for the purpose of performing or refraining from performing or facilitating an act in breach of their legal and/or professional obligations and/or any obligations arising from this Contract.
Article 23: THE PREVENTION OF MONEY LAUNDERING AND THE FINANCING OF TERRORISM, AND ASSET FREEZING (AML-FT/AF)
The Parties declare their strict compliance with the various provisions which may be applicable to them concerning anti-money laundering, the financing of terrorism and asset freezing, which may be derived in particular, where applicable, from section VI of Book V of the French Monetary and Financial Code or Regulation (EU) 2015/847 of the European Parliament and of the Council of 20 May 2015 on information accompanying transfers of funds, and/or any text that may supplement and/or replace them.
In this respect, the Parties undertake, as part of their relationship provided for in the Contract, and in compliance with the provisions in force, to work closely on implementing their respective obligations with regard to the fight against money laundering and the financing of terrorism, and asset freezing.
Article 24: REMAINING ARTICLES
All articles which, by their nature or by virtue of a clause in the Contract, are intended to apply beyond the term of this Contract shall continue following the expiry, termination or cancellation of this Contract for any reason whatsoever.
Article 25: REVERSIBILITY
At the Contract’s term or in the event of early termination of the Contract for any reason whatsoever, the Service Provider undertakes to ensure the reversibility of the operations performed under this Contract, at no cost to the Client.
The Service Provider shall provide the necessary assistance to ensure the resumption, transfer or migration of the Services provided to the Client or to any other person appointed by the Client, in order to ensure the continuity of the Services concerned and to mitigate the risk of disruption.
The Service Provider shall ensure that the Client can continue to use the Data, without interruption, either directly or with the assistance of another service provider.
More specifically, upon expiry of each Service or at the term of the Contract for any reason whatsoever, the Parties undertake, on their own behalf and on behalf of any subcontractor, respectively, to:
(i) return to the other Party all information and Data exchanged under the Contract as well as any copies of these elements (in an agreed format and timeframe, on the basis of a conventional, structured and commonly used format), subject to the archiving of information or Data (i) required to meet their legal, regulatory obligations or internal code of ethics and/or (ii) contained in electronic files automatically saved in computer back-up systems. Any information or Data that is not returned shall remain subject to the confidentiality obligations of the article on “Confidentiality” in the Contract throughout the entire duration of retention; and
(ii) delete any information and Data from computers, word processing programmes and similar equipment in which said information and Data have been programmed or stored, subject to the retention of information or Data (i) required to meet their legal obligations, in particular those arising from Personal Data regulations, and internal code of ethics and/or (ii) contained in electronic files automatically saved in computer back-up systems, until these computer files and folders are deleted. Any information or Data that is not destroyed shall remain subject to the confidentiality obligations of the article on “Confidentiality” in the Contract throughout the entire duration of retention.
Should any event arise that affects the continuity of the Services provided by the Service Provider (and in particular in the event of insolvency proceedings, termination or interruption of the Service Provider’s sales activities), the Service Provider undertakes to guarantee the Client access to all of its Data.
The duration and terms of the reversibility period shall be defined jointly by the Parties in a reversibility plan.
Each Party may appoint a person to oversee the reversibility phase.
Article 26: ENTIRETY OF THE CONTRACT
The Contract represents the entirety of the agreements made between the Parties, and cancels and replaces any previous oral or written agreement made for the same purpose.
In the event of a contradiction between the contractual documents that make up the Contract, the Parties expressly agree that they shall apply in the following order of decreasing priority:
- The Purchase Order,
- Any appendices to the Purchase Order,
- The General Terms and Conditions,
- Any appendices to the General Terms and Conditions.
No general terms or conditions of the Service Provider may give rise to obligations under this Contract.
The Client may use any document provided by the Service Provider during negotiations, sales proposals, advertising documents, correspondence, etc.
All other documents have no contractual value and are not enforceable against the Parties, unless the Parties expressly agree to add them in an amendment to this Contract.
Any modification to the Contract must be the subject of a written amendment signed by all Parties.
Article 27: APPLICABLE LAW AND JURISDICTION
The Contract is governed by French law.
In the event of a dispute resulting from the interpretation or performance of the Contract, the Service Provider and the Client undertake to seek an amicable settlement.
Failing such a resolution, in the event of a dispute concerning the interpretation and performance of these General Terms and Conditions and/or the Contract, power of jurisdiction is expressly attributed to the Nanterre Commercial Court.