These general terms and conditions (hereafter referred to as “General Terms and Conditions”) are intended to define the terms and conditions upon which OTO Technology company, an SARL (LLC) with a share capital of 35,000 €, whose head offices are located at 20, rue de Saint-Pétersbourg 75008 Paris, registered with the Paris RCS (Trade and Corporate Register) under number 534 628 318, represented by one of its two co-managers (hereafter referred to as “the Service Provider”, undertakes to provide services for the Client.
Any service provided by the Service Provider implies full acceptance of the General Terms and Conditions by the Client.
They prevail over the Client’s any other documents and general terms and conditions which shall not legally binding on the Service Provider, unless prior written consent is given by them.
The Client and Service Provider are referred to as such in the Specific Terms and Conditions or in a quote / purchase order.
ARTICLE 1 – OBJECT AND CONTRACTUAL DOCUMENTS
The Service Provider is a company specializing in IT, digital, and innovation, and shall perform the services in accordance with the conditions as defined in this contract (hereafter referred to as the “Services”) for the Client.
These General Terms and Conditions are intended to determine the conditions that shall apply for the performance of the Services by the Service Provider.
The Services are detailed in the Specific Terms and Conditions or in a quote / purchase order.
ARTICLE 2 – GROUP OF CONTRACTS
The contract (hereafter referred to as “The Contract”) consists of the General and Specific Terms and Conditions and annexes.
In the event of a contradiction between these documents, the below-mentioned order of precedence shall prevail:
- The Specific Terms and Conditions
- The General Terms and Conditions
- The annex.
ARTICLE 3 – CONTRACT DURATION AND ENTRY INTO FORCE
The contract commencement date and duration are defined in the Specific Terms and Conditions.
The Contract may be renewed automatically for a duration equal to the initial period, unless terminated by either Party by registered letter three months prior to its end.
ARTICLE 4 – SERVICE PROVIDER OBLIGATION
The Service Provider agrees to:
- perform the Service in accordance with the provisions of the Contract, common practice, and existing laws;
- notify the Client immediately of any event that may affect their ability to perform the Services;
- provide the Client upon contract conclusion and every six months until its expiry, with the following documents listed in articles D.8222-5 and D.8254-2 et seq. of the Code du travail (French labor law):
- Proof of social declarations, and of payment of all contributions, including social security contributions as per article L. 243-15, issued by the social welfare organization in charge of collecting social contributions that fall to it within the last six months;
- Either document:
- a copy of their incorporation in the RCS (trade and corporate register) (K or K bis);
- a quote, an advertising document, or business correspondence, provided the name or company name, the full address and the registration number with the RCS (trade and corporate register), or with the trade directory, or with a list or a chart of a trade association, or the authorization reference issued by the relevant authority are mentioned;
- a receipt acknowledging a declaration has been filed with a Centre des formalités des entreprises (business procedure center) for those whose registration is in progress.
- The list of foreign staff member names they employ who are subject to a work permit (this list based on the staff register mentions each employee’s hiring date; nationality; the type and order number of the document that constitutes a work permit) and who may take part in the performance of the Services.
As a professional, the Service Provider has advisory and cautionary duties towards the Client while the Contract is in force, the provision thereof being contingent to the latter’s close collaboration and clear expression of their needs.
The Service Provider agrees to supply all necessary human and material resources for the performance of the Services.
Given that the smooth running of any equipment, network, software, or IT service is not only subject to the quality of the equipment used and of the software installed, but also to factors beyond the Service Provider’s control, the latter only commits to performing the Services with their best efforts, whatever they are.
The Service Provider may hire sub-contractors to perform the Services.
The sub-contractors hired shall comply with the Contract and the law, including all provisions pertaining to personal data processing.
The Service Provider is liable to the Client for all services entrusted with sub-contractors.
The Client acknowledges that in the event of any special emergency (for example in the event of any equipment hacking, cases of force majeure, fraudulent actions observed by the Service Provider, failure of critical equipment and their replacement), the Service Provider shall be allowed to have access to the Client’s premises, equipment, and/or information systems without any prior notice and without having to comply with the support procedures that may have been agreed upon with the Client.
In the event of an emergency, the Client acknowledges and agrees that the Service Provider may have to purchase equipment as a replacement for the faulty or broken-down equipment. The costs involved shall be refunded by the Client based on the invoice issued by the Service Provider.
ARTICLE 5 – THE CLIENT OBLIGATIONS
Le Client agrees to:
- detail precisely what their needs are pursuant to the Contract. In particular, they agree to inform the Service Provider of any distinctive feature or professional use, or any legal or regulatory constraints pertaining to their activity and which the Service Provider should be aware of to perform the Services;
- fulfill the obligations that are incumbent upon them in accordance with the Contract and existing laws;
- collaborate with the Service Provider in order to help them perform the Services and fulfill their obligations in accordance with the Contract. In particular, the Client shall promptly notify the Service Provider of any event that may affect or hinder their ability to perform the Services; take care of the maintenance and safety of their own IT equipment, except when such Services are entrusted with the Service Provider as per the Specific Terms and Conditions.
ARTICLE 6 – FINANCIAL AND PAYMENT TERMS
The Service Provider shall be entitled to the payment by the Client of the sums agreed upon in the Specific Terms and Conditions, to compensate for the performance of the services.
Any amendment, extension, or reduction of the scope of the Services shall be subjected to an additional clause.
Unless otherwise provided for in the Specific Terms and Conditions or on the invoices, the Service Provider’s invoices shall be paid for upon reception.
The Service Provider shall send their invoices to the Client as per the Specific Terms and Conditions.
Any payment delay on the part of the Client shall result to late penalty fees amounting to 3 (three) times the currently applicable legal interest rate upon the day the payment default is observed, and to a legal lump sum of € 40 to compensate for recovery costs, in compliance with article L.441-9 of the French Commercial Code.
Should the Contract be renewed as per the conditions provided for in article 3, the price charged for the Services may be revised according to the SYNTEC index which operates as follows:
P1 = P0 x (S1 / S0)
P1 : revised price
P0 : initial contract price or latest revised price
S0 : benchmark SYNTEC index chosen on the date the Contract was entered into or when it was last revised
S1 : latest index published on revision date
Prior to performing the Services, the Service Provider reserves the right to demand that the Client produces solvency guarantees, and to suspend their execution in the event of a refusal to comply, in which case no claim for damages shall be filed.
The Service Provider reserves the right to pass on all costs that may have been borne by them on behalf of the Client, and any new tax or any rise of the current tax rates.
ARTICLE 7 – PERSONAL DATA
The Service Provider may have to access and process the Client’s personal data in order to perform the Services.
Should that happen, the Client shall be the data controller and the Service Provider the data processor as per the applicable regulations, in particular Act 78-17 of 6 January 1978 as amended, and Regulation (EU) 2016/679 of 27 April 2016 (GDPR).
The parties agree to comply with the terms of the applicable regulations and of annex 1 “Personal Data Protection”.
ARTICLE 8 – LIABILITY / INSURANCE
In the event the Service Provider fails to fulfill their obligations, they shall only be held liable for the direct damages sustained by the Client due to the non-fulfillment thereof, with exception of any indirect damages, including for example any harm to their image, operating loss, loss of income, data loss.
The Service Provider shall not be held liable when the non-fulfillment of their obligations results (i) from a cause beyond the Service Provider’s control, in particular in cases of force majeure as defined in the Contract, and (ii) from a cause induced by the Client (mistake, mishandling, client’s broken-down equipment, non-fulfillment of the Client’s obligations, fraudulent use of login details, etc.).
The Service Provider shall only be held liable in the event of a proven fault.
The Service Provider shall not be held liable when the non-fulfillment of the Services or any delay in the fulfillment thereof results from the practical terms of the Service Provider’s support services as demanded by the Client (e.g. impossibility to perform the services on week-ends or requirement to perform the services at night or outside working hours).
Should the Service Provider be held liable for any reason whatsoever, and should they have to compensate for any direct damage sustained by the Client, it is agreed that their liability shall be limited, all damages and causes combined, to one (1) time the total amount exclusive of tax charged as per the contract over the last twelve (12) months, except for serious or willful misconduct and personal injury.
The Service Provider acknowledges that they have subscribed to a third-party liability insurance policy that covers all risks pertaining to it.
The Service Provider agrees to maintain such coverage throughout the term of the Contract, and to produce evidence of it upon request from the Client.
The Client acknowledges that the provisions of this article shall in no way be construed as allowing them not to subscribe to their own insurance to cover the risks inherent to their trade.
ARTICLE 9 – TERMINATION / END OF CONTRACT
In the event either Party repeatedly and seriously fails to fulfill any of the obligations pertaining to the Contract, in particular to articles 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 16, the other Party shall be entitled to terminate the Contract without having to take any legal action, and no compensation shall be granted for the damage they may have sustained, provided they give them formal notice by sending a registered letter with acknowledgement of receipt that remains unanswered.
In the event of a termination, all sums already paid out or payable to the Service Provider for Services already performed shall be permanently earned or payable to them.
The Client shall be entitled to entrust the performance of the Services to any third party.
Should the Services performed include the fulfillment of reversibility operations, the parties shall agree on the actions that must be carried out for that purpose.
As part of the reversibility operations, the Service Provider may collaborate, insofar as they are able and within reasonable limits, with the Client and, if need be, the newly appointed service provider.
The reversibility services shall be subject to specific invoicing from the Service Provider who may issue a quote upon request from the Client.
At the end of the Contract, upon request from the Client, the Service Provider commits to returning and/or destroying the data they have been entrusted with, if need be, within 10 days from the Client’s request.
ARTICLE 10 – CONFIDENTIALITY
The Parties agree that, during the term of the Contract and for 10 (ten) years following its expiry, the content of this Contract as well as any kind of information (including technical and commercial information) of confidential nature which belongs to either Party, and which may be shared or communicated to either Party, (i) shall be protected and remain strictly confidential, and shall not be disclosed, directly or indirectly, to any unauthorized person or any third party, and (ii) shall not be used, in whole or in part, for any other purpose than the one hereby defined, without prior written consent from the disclosing Party.
Each Party agrees to make use of all the documents and information communicated within the scope of the Contract for the sole purpose of the Contract.
ARTICLE 11 – FORCE MAJEURE
In the event that either Party fails to fulfill all of their obligations under the Contract as a result of force majeure, such fulfillment shall be suspended without giving rise to any penalty or fees. However, in such a case, the Parties agree to promptly look for solutions to ensure the performance of the Services.
Should the force majeure event continue for more than 1 (one) month, the Contract may be automatically terminated by either Party.
The events that are expressly deemed as force majeure events are those pursuant to Article 1218 of the French Civil Code and case law, and include fire, flood, earthquake, natural disaster, riot, network failure, war, sabotage, cyber-attack, strike, lockout, explosion, epidemic, pandemic.
ARTICLE 12 – INTELLECTUAL PROPERTY
Each Party shall keep the ownership of the intellectual property owned by them on all of the materials they have shared and developed under the Contract.
Unless otherwise provided for in the Specific Terms and Conditions, no provision in this Contract may be interpreted as a transfer of any intellectual property right from the Service Provider to the Client. It is agreed that the Service Provider keeps ownership of all rights on the studies, drawings, models, prototypes, developments, and other materials developed within the scope of the contract, including upon request from the Client.
ARTICLE 13 – NON-SOLICITATION
The Client shall not, directly or indirectly solicit the Service Provider’s staff members (salaried or non-salaried) to hire them or offer to hire them.
Any breach of this provision on the part of the Client will result to a compensation for damages to be paid to the Service Provider, amounting to the yearly remuneration payable to the solicited staff member, all taxes and fees included.
The provision thereof shall be valid during the term of the Contract and for two years following its expiry, for any reason whatsoever.
ARTICLE 14 – BUSINESS REFERENCE
Each Party shall grant the other the right to use, display, or reproduce their trade names, logos, trademarks, or any distinguishing feature on all of the business materials (Website, brochure, etc.) aiming to promote and/or showcase the services offered by the Client or the Service Provider.
ARTICLE 15 – NON-TRANSFERABILITY
The Contract is entered into by each of the Parties intuitu personae.
Therefore, neither Party shall assign or transfer their rights and obligations, in whole or in part, by virtue of this Contract, without prior written consent from the other Party.
Any breach of this obligation may result, in addition to the defaulting Party’s liability, to the termination of this Contract pursuant to the provisions in article 9.
ARTICLE 16 – INDEPENDENCE OF THE PARTIES
Each party is independent from the other. This contract establishes no authority or subordination relationship whatsoever.
Without prejudice to the provisions of the Contract, neither Party shall be entitled to act on behalf of the other or make a commitment in their name. Each Party agrees not to do anything that may mislead third parties in that respect.
The Service Provider’s staff members in charge of performing the Services shall remain, in all circumstances, under the Service Provider’s control and authority, including in the event that such Services are to be performed in the Client’s premises.
Each Party is and shall remain free to choose their own service providers and sub-contractors. The Service Provider alone determines their work methods and is free to assign the staff members of their choosing to perform the Services for the Client.
ARTICLE 17 – GOVERNING LAW / JURISDICTION
The Contract is governed by the laws of France.
In the event of any dispute arising out of and pertaining to the conclusion, it is agreed that, if the Parties fail to come to an out-of-court settlement, the courts of Paris shall be exclusively competent, notwithstanding the introduction of third parties or multiple respondents, including for urgent or preventive proceedings, or by petition.