TERMS AND CONDITIONS OF SALE
On this page you will find MOBIX’s general terms and conditions of sale.
TERMS AND CONDITIONS OF SALE
GENERAL
These general terms and conditions of sale (hereinafter referred to as “GTCS”) are entered into between MOBIX, SAS with a share capital of 50,000 euros, whose registered office is located at En Callou, 31460 CARAMAN, registered in the Toulouse Trade and Companies Register under number 523102234 and represented by Thomas Soulier in his capacity as Chairman, hereinafter referred to as “the Service Provider”, and any legal entity wishing to benefit from the services offered by the Service Provider, hereinafter referred to as “the Customer”.
The parties agree that their relations will be governed exclusively by these GTS, which may be supplemented by special conditions indicated in the contractual documents for the services. These general terms and conditions, which cover all services offered by the Service Provider, exclude all general and specific terms and conditions of purchase of customers, and may only be modified or supplemented by an amendment accepted by the Service Provider and the Customer.
DEFINITIONS
The Parties agree that the terms below, in the singular or plural, beginning with a capital letter, in this Agreement and all related documents, shall have the meaning as defined below, excluding headings and the beginning of sentences.
Contract – refers to these General Terms and Conditions
Service contract – refers to the specific contract whose provisions govern a project, training services or assistance services and which is subject to these GTS.
Technical costs – refers to all costs required to carry out the Mission; if necessary, they will be designated in Appendix 3 of the present contract;
Deliverable – means the end result of the execution of each phase of the Services (possibly organized in Lots or Stages) in its written version and whatever the medium;
Delivery or acceptance of work – means the handing over of a Deliverable by the Service Provider to the Customer within the time and in the form agreed in this Contract and/or its appendices;
Lot(s) – designates one or more divisions of the Mission; a Lot may generate several Deliverables;
Assignment – refers to all Consulting and Expertise Services entrusted to the Service Provider under this Contract, which may result in the completion of one or more Lots and/or Stages consisting of one or more Deliverables.
DURATION
This Contract comes into force on the date it is signed by the Parties; it will be renewed by tacit agreement unless terminated by one of the Parties within thirty days prior to the end date of the Mission indicated in the appendices. This denunciation must be sent to the other Party by registered letter with acknowledgement of receipt.
At least one (1) month before the end of the term of the Contract, the Parties will meet to agree on the terms and conditions in the event of continuation or renegotiation of the present Contract; at the end of these discussions, only the appendices may be modified.
MODIFICATIONS
The present Contract may be modified by mutual agreement between the Parties, by means of an amendment, in order to incorporate :
changes resulting from a legislative or regulatory text of which the Parties undertake to keep each other informed (changes of public order automatically apply to the Parties),
any other modifications deemed useful by the Parties and defined jointly by them.
TERMS AND CONDITIONS OF SERVICE
In addition to the various Lots, the appendices to the Service Contracts must list the various associated Deliverables if necessary.
These Deliverables must be precisely described and must also include the acceptance schedule, if 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 performance of a Service Agreement, the Customer must notify the Service Provider in writing, specifying the extent and characteristics of the modifications.
The Service Provider will only undertake the corresponding additions or modifications after receiving the Customer’s prior written consent. This agreement will be the subject of an amendment to the corresponding Service Contract.
Where a period in days is indicated in a Service Contract, it refers to working days unless otherwise specified. However, when a deadline expires on a Saturday, Sunday or public holiday, the deadline is extended until the end of the next working day.
In the event that one of the Parties becomes aware of any event or fact whatsoever, including if attributable to itself, likely to delay the performance 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 will then discuss ways of reducing the delay, and may jointly draw up a new timetable for completion.
ORDERS
To be valid, all orders must be confirmed in writing. The order may be placed by returning the quotation or offer from the Service Provider duly signed and marked “bon pour accord”. Orders may also be placed by sending a document on the customer’s letterhead, specifying in particular: the nature of the service, the quantity, the agreed price, the terms of payment (if they have been negotiated, rendering the terms of payment defined in these general terms of sale null and void), the start and end dates of the service, and the place of performance/delivery of the service if it differs from the place of invoicing.
If, during a previous order, the Customer has failed to meet one of his obligations (default or late payment, for example), he may be refused sale, unless he provides satisfactory guarantees or payment on order.
OBLIGATIONS OF THE PARTIES
Customer obligations
In addition to the obligations incumbent on the Customer as set out in the Service Agreement, the Customer is responsible for :
provide the information required to carry out the Services entrusted to it, and in particular to provide support for any architectural problems that may arise;
put the Service Provider in contact with all persons concerned by the project in question;
provide only those logistical resources necessary and sufficient for the performance of the Service;
backup data before, during and after the mission. The customer remains responsible for the integrity of his data;
monitor the Service by making any necessary comments in writing.
Finally, the Customer undertakes to provide the Service Provider with a list of its network contacts.
Obligations of the Service Provider
The Service Provider undertakes to perform the Services defined in this Agreement in accordance with the best practices applicable to the type of Services to be performed and in compliance 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 requirements, if the information in its possession is not sufficient to carry out the expected Mission.
If the Service Provider becomes aware of any event or fact likely to delay the performance of all or part of the Services, it shall, as soon as it becomes aware thereof, notify the Customer by any means it deems appropriate. The parties can then discuss how to limit or avoid the delay.
After-sales service (warranty) terms are specified on MOBIX quotations for fixed-price services including software development.
RESPONSIBILITY
The Service Provider is bound by a best-efforts obligation to provide services within the agreed deadlines.
Excluding gross negligence on the part of the Service Provider and compensation for personal injury, the Service Provider’s liability is limited to direct material damage resulting from the Service. This liability shall be limited to the amount of the Service.
Under no circumstances shall either party be liable for any loss suffered by the other party as a result of the latter’s failure to perform its obligations, such as, in particular, the customer’s failure to comply with the instructions for use of the deliverables or the latter’s misuse of the deliverables, or, in particular, the service provider’s failure to comply with its performances and obligations.
In no event shall the parties be liable for any indirect damages suffered by the other party resulting from the use of the deliverables and the performance of this agreement, as such indirect damages are commonly accepted by French case law. In particular, the service provider, who has an obligation of means in the performance of its services, is in no way liable for indirect damage resulting from the use of its deliverables and the performance of this contract.
FINANCIAL CONDITIONS
Mission amount and billing
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 on 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 mentioned in the preliminary offer, they are valid for a maximum of 1 month.
In accordance with article art-293B of the French General Tax Code, VAT is not applicable to prices quoted and invoiced.
Whatever the method of payment agreed between the parties, payment will only be deemed to have been made once the price has been effectively collected.
In the event of partial payment, this will be applied first to any late payment penalties, then to the current installments in descending order of age.
Settlements and penalty clauses
Invoices are payable on receipt; the valid means of payment are specified in the Service Agreement.
LATE PAYMENT PENALTIES: Late payment penalties, equal to the interest rate applied by the European Central Bank to its most recent refinancing operation plus 10 percentage points, of the invoice amount including VAT, are due for each day of delay without the need for a reminder (L. 441-10 of the French Commercial Code). Any follow-up action will be billed at €40 excluding VAT (Decree no. 2012-1115 of October 2, 2012).
In the event of non-payment, even partial, on the due date, the Service Provider reserves the right to terminate the contract or suspend the performance of current services.
CORRESPONDENTS
Each Party appoints a contact person responsible for monitoring the proper application of the Services Agreement, to whom all correspondence should be addressed.
These contacts will be designated in the appendices to the relevant Service Level Agreement.
Each Party may at any time notify the other of a change in the person of its correspondent. Each correspondent can notify the other of the name of its delegate at any time. In the event of delegation by the correspondent, all correspondence must be copied to him or her.
No correspondence subject to a time limit may be addressed to a correspondent’s delegate.
INTELLECTUAL PROPERTY RIGHTS
The Service Provider retains ownership of its know-how and methods used in the performance of the Services.
The Service Provider declares that it is the legitimate holder of all rights of use and/or intellectual property rights relating to the elements that it may use and/or 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 human- or machine-readable form, produced by the Service Provider within the scope of the Service Agreement remain the property of the Service Provider. Consequently, the Service Provider will be able to enjoy the moral and economic rights to 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 the 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 creations resulting from the service.
DISCLAIMER
The fact that a Party tolerates a situation, whether temporarily or permanently, or does not exercise a right, or exercises it only with delay, shall not be considered as a waiver of its rights, and the partial exercise of a right shall not prevent the exercise of that right again or in the future, or the exercise of other rights. Any waiver of a right will only be effective in any event if it is expressed unequivocally and in writing by the person legally empowered to bind the Customer.
PERSONNEL
Working conditions of the Service Provider’s personnel
The Service Provider undertakes to comply with all legal and collective bargaining provisions applicable to its personnel.
The parties undertake to enforce and comply with health and safety rules as defined by the French Labor Code, in particular those applicable to work carried out on the premises by outside contractors.
Fighting illegal employment
The Service Provider declares on his honour that he meets the obligations of the legal provisions relating to the fight against undeclared work. In this respect, it undertakes to have the Services performed only by persons regularly employed in accordance with articles L.1221-10, L.3243-2 and R.3243-1 of the French Labour Code.
NON-SOLICITATION CLAUSE
The parties agree not to engage, or have engaged on their behalf, outside the scope of this agreement, either directly or indirectly, any present or future employee of the other party. This clause applies regardless of the specialization of the employee in question, and even if the solicitation is initiated by said employee. This clause shall remain in force throughout the performance of this agreement, and for two years after its termination.
OUTSOURCING
The Customer has entered into the Service Agreement on the basis of the Service Provider’s expertise and experience.
Consequently, the aforementioned Service Provider is authorized to subcontract all or part of the Services covered by the Service Agreements, subject to the Customer’s prior written consent.
If the Customer authorizes the Service Provider to subcontract, the Service Provider remains fully and jointly liable to the Customer for all or part of the Services entrusted by the Customer.
NON-TRANSFERABILITY OF THE CONTRACT
The Customer has entered into this Agreement and the resulting Service Agreements intuitu personae in consideration of the Service Provider and its know-how and experience.
Consequently, the Customer may not, without the prior written consent of the Service Provider, assign and/or transfer, in whole or in part, this contract to a third party, regardless of the legal form used.
TERMINATION
Termination for non-performance
During the initial term and any renewal periods, either Party may terminate this Agreement by operation of law in the event of non-performance by the other Party of any of its essential obligations, and if such non-performance is not remedied within one (1) month of a formal notice to this effect sent by registered letter with acknowledgement of receipt.
Consequences of termination
In the event of termination of the Contract, each Party will be released from all obligations to the other in respect of the performance of the terminated Contract, without prejudice to any liability claims or warranty claims it may have.
However, the Customer shall be liable for payment of invoices corresponding to compliant Services already performed, and the Service Provider shall be liable for delivery of all goods and services and performance of all Services for which payment has been received from the Customer.
PRIVACY
Confidentiality of information
The Parties undertake to maintain the strictest secrecy concerning all information (particularly technical, financial or organizational) entrusted to them and/or to which they may have access within the framework of this Contract. They undertake to ensure that this confidentiality is respected by their staff, employees and any subcontractors.
Confidential information” does not include information that was regularly known and was not confidential before it was communicated as confidential information, information that was independently developed by either of the Parties, information that has previously fallen into the public domain or that falls into the public domain through no fault of the Parties.
Each Party, recognizing that any disclosure would seriously damage the interests of the other Party, will therefore ensure the protection of any information and documents entrusted by the Party concerned, with as much care as if they were confidential data relating to its own affairs.
For example, each of the Parties undertakes to ensure that all information transmitted may not be used (except in the performance of the present contract), published or communicated by it or any of its employees or subcontractors, by any means, in any form or in any manner whatsoever, and to ensure its security by taking all appropriate measures.
At the end of the Contract, or at the first request of the Party concerned, the other Party must return all media containing the latter’s confidential information, and undertake in writing to destroy the aforementioned information irreversibly.
This clause will continue to bind the Parties for a period of two (2) years from the end of the present Contract, whatever the cause.
Contract confidentiality
This Agreement is strictly confidential. Neither of the Parties may refer to the contractual documents referred to herein without the express prior consent of the other Party, except where one of the said Parties needs to justify to the tax authorities the entries made in execution of the present contract, or for access by the Chartered Accountants, Statutory Auditors, supervisory authorities or control bodies of each Party, or in the context of any legal proceedings and/or expert appraisal, where this waiver of confidentiality is dictated by the forced execution or non-execution of the Contract.
DATA PROTECTION ACT
The Parties undertake to comply with the provisions of the French Data Protection Act of January 6, 1978, as amended by Act no. 2004-801 of August 6, 2004.
The Service Provider undertakes to implement appropriate measures to protect personal data against unauthorized access or dissemination, and to act only on the instructions of the data controller, i.e. the Customer. The Service Provider undertakes to provide the Customer with any information required for CNIL formalities.
The Service Provider undertakes to comply with the following obligations, and to ensure that its employees and subcontractors comply therewith in an absolute manner, when handling personal data in the performance of the present contract:
not to make any copies of the data and media, except for the purpose of executing the present contract,
not to use the data and information for purposes other than those set out herein,
not to disclose the data or information to third parties to the Contract,
take all necessary measures to prevent misuse or fraud,
take all measures, including physical security measures, to ensure the preservation of processed data and information,
process and host data exclusively within the European Union,
purge data at the Customer’s first request, and justify this to the Customer.
Failure by the Service Provider to comply with any of the above obligations may constitute grounds for unilateral termination for fault, at the Customer’s initiative.
FORCE MAJEURE
It is agreed between the Parties that the occurrence of an event of force majeure as described by French legislation and jurisprudence shall release the Party invoking it from the performance of its obligations under this Contract. The Party invoking the exception of non-performance due to force majeure must notify the other Party by registered letter with acknowledgement of receipt within 8 (eight) working days of the occurrence of the event constituting force majeure. Should the Party invoking the exception fail to comply with these time limits, the other Party may deny the exception.
Should the occurrence of a force majeure event prevent either Party from performing its obligations for more than one (1) month, the other Party may terminate the Contract without notice by registered letter with acknowledgement of receipt. In this case, any Services already rendered shall remain payable to the Service Provider.
INSURANCE
The Service Provider undertakes to have taken out, and to maintain in force for the entire duration of the Contract, an insurance policy, with a reputable and solvent insurance company, designed to cover all risks that may arise in connection with the performance of the Services covered hereby, covering the pecuniary consequences of its tortious, quasi-delinquent and contractual civil liability for bodily injury, material and immaterial damage which may be suffered by the Customer, as a result of its employees, its property and any person for whom it may be held civilly liable.
The Service Provider undertakes to provide the Customer, on request, and on each anniversary date of this Contract, with a certificate, less than three (3) months old, for the new annual period of cover for its civil liability insurance no. 151.329.050 taken out with GAN ASSURANCES.
COMMERCIAL REFERENCES
The Service Provider may, with the Customer’s prior written consent, publish articles relating to the Services performed under this Agreement or involving the Customer’s name, denomination, trademarks and logos or other designations, whether commercial or otherwise, whether explicit or implicit.
Subject to the express prior authorization referred to above, the Service Provider undertakes to comply strictly with the Customer’s graphic charter, if any, and to incorporate the same visuals reproducing the Customer’s brand and/or standard logo without modification.
MISCELLANEOUS PROVISIONS
Entire Contract
This Agreement contains the entire obligations of the Parties, the provisions herein being exclusive of all others, superseding any proposals, agreements, protocols, or general terms and conditions of sale of the Service Provider, and prevailing over all other communications between the Parties, relating to the subject matter hereof, whether or not made during the performance hereof.
No subsequent modification of the Contract may be made unless it is recorded in a document signed by the Parties and appended hereto as an Amendment.
Partial nullity of the Contract
Should any of the provisions of this Contract be nullified or invalidated, such nullification or invalidation shall not entail the nullification or invalidation of the other provisions, unless otherwise decided by a court of law. In such a case, the Parties agree to replace the invalid or unlawful clause, after negotiation in good faith, with a valid clause reflecting their original intention.
Tolerance – Non-waiver
The fact that one of the Parties has not required the application of a clause shall in no way be considered as a waiver of its right to subsequently enforce, at any time and without notice, each of the clauses and conditions herein, nor as a waiver of the rights arising from said clause. Tolerating a situation in no way grants acquired rights.
SETTLEMENT OF DISPUTES AND APPLICABLE LAW
This Contract is governed by French law. In the event of any dispute arising hereunder, the Parties shall endeavor to find an amicable solution prior to any legal proceedings.
Failing amicable settlement, any dispute may be referred to the Commercial Court of Toulouse, whose jurisdiction is expressly granted, irrespective of the defendant’s domicile, and in the event of warranty claims or multiple defendants.
The Parties elect domicile at their registered office, as shown in the appearance. In the event of failure to notify the other Party of a change in their registered office, any notification made to the last known address shall be deemed valid and effected.