General Terms and Conditions
These general terms and conditions (the "General Terms and Conditions") apply to all services (the "Services") ordered by the customer (the "Customer") and provided by SKETCH & CO, SASU, a one person simplified joint stock company with a capital of 150,000 euros, registered in the Bordeaux Trade and Companies Register under number 919 570 911, whose registered office is located at 36 Allée du Violon, 33370 Bonnetan (the "Provider"). The Services are generally provided pursuant to a proposal embodying our commitment, to which the General Terms and Conditions are attached (the "Proposal"). Failing this, the description of the Services, as well as our commitments, may be formalised by any means such as exchanges of letters or emails. Any reference herein to a Proposal shall therefore be understood to refer also, where applicable, to any other form of exchange of consents as specified above.
For the purposes of these General Terms and Conditions, the terms "you" and "your" refer to the customer receiving the Services and the terms "we", "us" and "our" refer to the Service Provider, and the term "Parties" refers to the Service Provider and the Customer.
In the event of any conflict between the General Terms and Conditions and the Proposal, the latter shall prevail.
The Proposal and the General Terms and Conditions form the contract (the "Contract") between the Parties.
1. CONDITIONS OF PERFORMANCE OF THE SERVICES
The Services shall be provided with all due diligence and skill and shall be performed in accordance with the rules of the trade.
2. COOPERATION BETWEEN THE PARTIES
2.1 You undertake to co-operate with us and in particular, if this is useful for the provision of the Services, to provide us within the time limits compatible with our commitments, at our request or spontaneously, with any information, assistance and access to
documentation in your possession that proves useful for the provision of our Services.
2.2 You will ensure that any information you provide to us and any opinion expressed by you in connection with the Services or set out in any document, communication or advertisement which we may use in connection with the Services is accurate, complete, based on credible sources, does not infringe the rights of any third party, is not confidential and is not misleading.
2.3 You will keep us informed of any fact or circumstance of which you are aware that may affect the proper performance of the Services.
3. REMUNERATION AND EXPENSES
3.1 Remuneration
The methods used to determine our remuneration (lump sum, days spent by our staff on the basis of the rate applicable to each of these staff members - Man-Day Rate, or other) are specified in our Proposal or in any discussions concerning the organisation of our Services.
In the case of flat-rate remuneration, if it appears during the performance of the Contract that the information you provided to
us to establish the remuneration is incorrect or inaccurate, you agree that the additional days required to perform the Services will be invoiced to you in addition to the agreed flat rate at the prevailing man-day rate. If you do not accept this, the Contract will expire at the end of the agreed timetable and our Services will be deemed to have been duly performed.
Where our remuneration is determined on the basis of the number of days spent by our contractors on the basis of the Man-Day Rate applicable to said contractors and an estimate of the price of the Services is provided in the Proposal, we will endeavour to comply with it. However, this estimate does not constitute a fixed-price commitment and may change during the performance of the Services. We will keep you informed periodically, or at your request, of foreseeable changes in the number
of man-days required.
We reserve the right to increase our Man-Day Rates once a year by up to 10%. In the event of an increase in the applicable rates, we will inform you of the new rates at least thirty (30) days before they come into force. The revision of the Man-Day rates does not apply to packages validated before the notification is sent.
In the event of a new request from the Customer or new events and circumstances not provided for in the Proposal, the new assignment will be subject either to a fixed price or to an estimate based on the current Man-Day Rate applicable to each of them.
If the order form is approved, the Proposal must be amended in writing or a new proposal may be agreed in addition.
If the Services we provide have exceeded your expectations and have enabled you to make significant progress and/or gains, you will naturally be able to agree additional remuneration.
3.2 Charges
Unless expressly stated otherwise in the Proposal, our remuneration does not include the costs and expenses incurred in connection with the performance of the Services (the "Costs") and in particular, without this list being exhaustive, the transport and accommodation costs necessary in connection with the performance of the Services, reprographic costs, costs relating to the holding of meetings, room hire costs, catering costs or costs relating to documentary material. You undertake to pay
the said Costs in full.
These Costs will be specified to you throughout the performance of the Services. All costs incurred by us after receiving your agreement will be invoiced to you on presentation of receipts in addition to the remuneration and must be paid to us without delay on receipt of the corresponding invoice.
4. INVOICING - PAYMENT
4.1 Unless otherwise agreed in writing in our Proposal, 30% of our remuneration shall be paid on commencement of the Services and the balance shall be invoiced on delivery of the Deliverable.
4.2 Our invoices are payable by bank transfer within thirty (30) days of the invoice date. In the event of non-payment on the due date, late payment interest at a rate equal to the interest rate of the European Central Bank (ECB) for its refinancing operations, plus 10 points, will be applied by operation of law and calculated on the part of the price still to be paid, from the due date until the date of actual payment, as well as fixed recovery costs of forty (€40) euros as provided for in article L 441-10 of the French
Commercial Code.
4.3 Any dispute concerning an invoice which has not been submitted in writing with acknowledgement of receipt within thirty (30) days of the invoice date will be considered invalid and therefore inadmissible.
4.4 We also reserve the right to suspend the provision of the Services until full payment of any sum due and unpaid.
5. OWNERSHIP AND USE OF DELIVERABLES
5.1 In consideration of payment in full for the relevant Services, we will grant you the right to use and reproduce for internal, noncommercial purposes the results of the Services, namely the documentary deliverables as exhaustively defined in the Proposal and produced as part of the Services (hereinafter the "Deliverables").
This licence is effective both in France and abroad and for the entire legal duration of copyrights protection.
5.2 The Parties undertake to respect the intellectual property rights belonging to third parties.
6. CONFIDENTIALITY - SECRECY
6.1 In the performance of these Terms and Conditions, the Parties are bound by an obligation of confidentiality. Each Party undertakes not to disclose to third parties any documents, knowledge, know-how and data of any kind communicated by any means by the other Party relating directly or indirectly to the Services to which it may have had access during the performance of the Contract (hereinafter the "Confidential Information"), including if this information comes from a third party involved in the performance of the assignment.
The Parties undertake to protect the Confidential Information from loss or unauthorised disclosure or use using the same degree of care as they use to protect their own confidential information of a similar nature and not to use, copy or extract any Confidential Information, in whole or in part, for any purpose other than the performance of the Services, without the prior written consent of the disclosing party.
6.2 However, information is not considered to be confidential:
- already legitimately in the possession of the other Party on the day the Contract is signed;
- made accessible to the public prior to its disclosure or after its disclosure but in this case in the absence of any fault on the part of the Party receiving it;
- which a Party has received from a third party authorised to communicate it lawfully ;
- developed independently and in good faith by members of the staff of the Receiving Party without them having had access to the Confidential Information.
6.3 In the event that either Party or any of its representatives (including its employees) is requested or required by law, regulation, court order or legal process to disclose any Confidential Information whatsoever, received from the other Party, it will inform that Party and co-operate with it, to the extent permitted by law in order to act in the best interests of that Party, and will only disclose Confidential Information that is strictly necessary to comply with its obligation and will inform recipients of the confidential nature of such information.
6.4 The Parties undertake to ensure compliance with the obligation of confidentiality set out in Article 6 by the members of their staff and their subcontractors or, in general, any third party to whom they may be authorised to communicate Confidential Information and who may have a direct need to know such information in connection with the performance of the Services and shall be directly liable for any breach, act or omission by such person or entity which shall constitute a breach of this Agreement, as if committed by the Party itself.
6.5 The Parties undertake to ensure that all persons who have had access to Confidential Information and who are no longer contractually bound to the Parties (former employees, subcontractors, etc.) are required to continue to comply with the provisions of this Article for the duration of this confidentiality undertaking. Each of the Parties undertakes to ensure compliance with this confidentiality obligation by its former employees and/or any person who may have had access to the Information as a result of their contractual relationship with one of the Parties.
6.6 The confidentiality undertakings referred to in this article are binding on the Parties for the entire duration of the Services and for a period of three (3) years following the expiry of the Services.
7. RESPONSIBILITY
7.1 We undertake to perform the Services in accordance with the rules of the trade and within the framework of a best endeavours obligation.
7.2 We may only be held liable under the Contract for the harmful consequences resulting from a proven contractual fault committed in or in connection with the performance of the Contract. We may only be held liable for the consequences of direct,
personal and certain damage suffered by you.
7.3 In any event, the amount of damages that we may be held liable for shall be limited to the amount of payments (excluding tax) that you have actually made under the Contract during the last twelve (12) months prior to the event giving rise to the damage.
7.4 You acknowledge that nothing herein relieves you of your obligation to pay all amounts due to us in respect of the Services
performed.
8. REFERENCES
Unless expressly stated otherwise in writing, you authorise us to use your trade name and logo and/or brand for reference purposes in your capacity as a customer (e.g. presentation media, website, publication, etc.). For any further communication, we will obtain your prior written consent.
9. FORCE MAJEURE
9.1 Neither Party may be held liable for any delay in the performance of its services or obligations under the Contract, or for any failure to perform such services or obligations, where such delay or failure to perform is attributable to an event of force majeure as defined in Article 1218 of the French Civil Code.
9.2 The Party invoking an event constituting force majeure must notify the other Party in writing. The Parties will then endeavour to reach an amicable agreement. The clauses herein shall resume their effect as soon as the reasons for suspension have been eliminated.
9.3 In the event that the effects of a case of force majeure persist beyond a period of three (3) months, the Contract may be terminated automatically and without compensation, at the initiative of either of the Parties, by registered letter with acknowledgement of receipt.
10. ASSIGNMENT OF THE CONTRACT AND SUBCONTRACTING
10.1 The Contract is strictly personal and may only be transferred or assigned directly or indirectly, in whole or in part, for any reason whatsoever, by the Parties with the prior written authorisation of the other Party, and on condition that the assignee assumes all the rights and obligations of the Party concerned.
10.2 You expressly accept that we may reserve the right to use one or more qualified subcontractors to carry out part of the
Services. If all or part of the Services are subcontracted, we shall remain liable to you for the proper performance of the Services entrusted to our subcontractor.
11. MISCELLANEOUS
If one or more of the stipulations of the Contract are held to be invalid or unenforceable, it is the intention of the Parties that the other stipulations shall retain all their force and scope.
12. APPLICABLE LAW AND JURISDICTION
12.1 The Contract and the resulting obligations are governed by and interpreted in accordance with French law, to the exclusion of conflict of laws rules.
12.2 Any dispute between the Parties relating to the formation, interpretation, validity and performance of the Contract shall, after an unsuccessful attempt at amicable resolution within a period of two (2) months, be subject to the jurisdiction of the courts of Bordeaux (including all disputes and claims of a noncontractual nature), which shall have sole jurisdiction notwithstanding multiple defendants or the introduction of third parties.