General Terms & Conditions – Offshore

1.     PREAMBLE

 

These General Terms and Conditions of Sale, hereinafter referred to as the "GTC", apply to all orders for digital services.  As such, the GTC govern the contractual relationship between NETINO hereinafter the "Service Provider" and the Customer as mentioned above the "Customer".

In addition, NETINO and the Customer are hereinafter referred to individually as the "Party" or collectively as the "Parties".

Consequently, the acceptance of an order by the Service Provider implies the unreserved acceptance by the Parties of these General Conditions of Sale unless special conditions negotiated in writing between the Parties.

 

2.     OBJECT

 

In accordance with the indications contained in this Order Form, NETIN O, which benefits from itsown competence and a specific technicality allowing it to carry out the missions, undertakes to carry out, within the framework of a general obligation of means, a provision of services on behalf of the Customer.

In return for the Services performed by NETINO, the Customer shall pay the price, including in the event of a dispute relating to the performance of the services agreed herein for which a dispute procedure would be opened and instantiated by the Parties, as determined in this Order Form, plus the taxes in force on French territory. As such, the Payment of the Service constitutes an essential obligation of the GTC.

Any modification of the terms of the order must be the subject of an amendment confirmed by both Parties, or a new order that will cancel and replace the previous order.

In the absence of agreement on the new characteristics of the provision of services, NETINO will be released from any responsibility for the failure to implement the means requested.

 

3.     PRICE

3.1 Terms of payment

Payment of the price agreed in the Order Form must be made, in full and without compensation, unless the Parties agree otherwise in writing.

Periodic invoices will be issued each month and sent to the Customer at the beginning of the following month.

Any amount paid under the Agreement must be paid within (45) forty-five days from the date of issue of the invoice, it being specified that NETINO reserves the right to charge interest on the unpaid amount in the event of late payment until the date on which the payment is made, whether such payment occurs before or after any judgment obtained in this regard. Interest on late payment is due without prior notice of default and is calculated according to an interest rate which may not be lower than the key rate of the European Central Bank increased by 10 points with anatocism. In addition, any delay in payment gives rise to the payment of compensation for recovery costs in the amount of € 40 per invoice. All other costs related to payment are the responsibility of the Customer.

In addition, in the event of late payment by the Customer, NETINO reserves the right to suspend the Service until full payment of the outstanding invoice(s) after a formal notice to pay notified to the Customer and remained unsuccessful for fourteen (14) calendar days following such notification.

All payments will be made in Euro by check or bank transfer.

 

3.2 Price revision

 

The prices are revised each year on the anniversary date of the Contract using the consumer price index of the country where the Services are produced and the SYNTEC index as a reference, by applying the following formula:

 

P = 0.7 P0 x (C/C0) + 0.3 P0 x (ST/ST0)

 

P = revised unit price

P0 = unit price before revision

C = latest CPI (Consumer Price Index) published at the revision date

C0 = CPI (Consumer Price Index) of the same month as C, published the previous year

ST = last SYNTEC index published at the revision date

ST0 = SYNTEC index of the same month as ST, published the previous year

 

In the event of the disappearance of the revision index, the Parties shall meet to agree on a new replacement index.

In the event of a change in the technical or economic conditions of performance of the Contract resulting from the law and/or any action or decision of a governmental authority in a territory from which the Service Provider provides the Services to the Client (in particular in the event of changes in the minimum wage, standards, taxation, social law and social obligations),    the parties agree to meet immediately in order to (i) adjust the Provider's remuneration in good faith, and/or (ii) identify and implement alternative solutions that would remain mutually beneficial to the Parties (including by providing the Services from another territory).

In the absence of agreement reached between the Parties, each of the Parties may terminate the Contract by registered letter with acknowledgment of receipt subject to a notice period of three (3) months.

 

4.     RESPONSIBILITY

 

Each Party is liable for any damage resulting from non-performance or improper performance of its obligations and which would be directly attributable to it, subject to justifying a causal link between the fault and the damage and proving the damage suffered.

Neither Party (nor any of its Affiliates) shall be liable to the other Party (or to the Affiliates of the other Party) for any immaterial and/or indirect damages arising out of or in connection with the Agreement or an Application Agreement. Each Party undertakes in advance to waive and have its insurers waive any claim or exercise any recourse against the other Party and its insurers in order to obtain compensation for such immaterial and/or indirect damages.

In any event, the maximum aggregate liability of a Party (or its Affiliates) to the other Party (or its Affiliates) shall not exceed 50% (fifty percent) of the annual revenue [addition to projections] excluding VAT of the contractual year in which the event giving rise to liability occurred. Consequently, the Customer undertakes in advance to waive and have his insurers waive any claim or exercise any recourse against the Service Provider and its insurers in order to obtain compensation for damages suffered by him and whose amounts exceed the ceiling set out above.

The foregoing shall not limit or exclude the liability of any Party (or its Affiliates) where such liability cannot be lawfully limited or excluded.

 

5.     FORCE MAJEURE

 

In the event of an event of force majeure as defined by Article 1218 of the Civil Code and the case law of the French courts, neither Party can be held responsible for the non-performance or degraded performance of its obligations under the Contract.

The Party responsible for the characteristic performance which considers that it can no longer perform one or more of its obligations under the Contract due to an event of force majeure shall inform the other Party in writing as soon as possible. The Parties then undertake to come together to determine together whether it is appropriate to suspend the performance of the Contract for a period corresponding to the case of force majeure if an end can be envisaged in the short term, if they terminate the Contract in particular because they anticipate that the event of force majeure will last more than one year or if they continue the performance of the Contract in whole or in part under degraded conditions on which they will have agreed by amendment to the Contract or the application contract (e.g. business continuity plan with teleworking).

If the Parties fail to reach an agreement under the conditions of the above article, the Parties agree to apply the second paragraph of Article 1218 of the aforementioned Civil Code.

 

6.     Outsourcing

The Client hereby authorises the Service Provider to subcontract all or part of the Services to its own subcontractors whom it supervises and controls.

NETINO may, at the request of the Customer, provide a list of its service providers and subcontractors.

 

7.     Personal data

 

Within the framework of these GTC, each of the Parties will be required to implement Personal Data Processing.

For the Processing of Personal Data implemented in the context of theGTC by each of the Parties acting as Data Controller for its own purposes, the Parties undertake to comply with all their obligations under the Regulations applicable to personal data.

For the Processing of Personal Data implemented in the context of the GTC  by  NETINO, acting as a Processor on behalf of and according to the instructions of the Customer, the rights and obligations of the Parties with regard to the Processing of Personal Data are governed by the annex "Processing of Personal Data" which constitutes a contract for the processing of Personal Data under Article 28 of the GDPR.

Each Party undertakes to communicate to the other the contact details of its Data Protection Officer or a contact point for questions relating to the protection of personal data, by means of the annex "Processing of personal data" provided for this purpose.

 

8.     CONFIDENTIAL

 

For the duration of the Contractand the three (3) years following the end of the Contract, the Parties agree to keep confidential the confidential Information of the other Party.

The Parties grant each other the right to use and reproduce, strictly for commercial reference purposes, the company name, trade name, sign, trademark(s), logo(s) or any other trade symbol of the other, to the exclusion of any other IPR and to publicly disclose the Services provided by NETINO to the Client.

 

9.     INTELLECTUAL PROPERTY LAW (IPR)

 

All IPR pre-existing on the Effective Date remains vested in the Party to which it belonged prior to the Effective Date and nothing in the Agreement transfers ownership or licenses such IPR, except for the concessions expressly granted below and more generally in the Agreement.

All IPR relating to the Services and/or deliverables rendered, created, developed, etc. by NETINO belongs to NETINO, whether or not there is a deposit. Thus, failure to file when it could do so does not deprive NETINO of its ownership rights in the IPR in question.

The Customer's IPR prior to the Contract Date and the IPR developed solely by the Customer during the term of the Contract, belong exclusively to the Customer, except where otherwise provided by law.

All documents drawn up by NETINO during the service phase, analyses and reflections, as well as the data processed remain the property of the Client, provided that the latter pays the invoices on the due date.

 

10.   RUNTIME

10.1 Contractual term

 

In the absence of a period specifically defined in the Order Form, above, this agreement takes effect on the date of commencement of the service for an initial period of twelve (12) months. The Customer has the possibility to waive at any time the renewal of the initial period by informing NETINO by registered letter with acknowledgment of receipt and this in compliance with a notice period of three (3) months. As such, any month started is due. In the absence of termination by either Party, the Contract will be tacitly renewed for twelve (12) months.

 

10.2 Trial period

 

If the Customer is considered a new customer by Netino, the Customer benefits from a trial period of one (1) month firm which he may terminate at any time by any means, subject to doing so before the termination comes to an end.

At the end of the trial period, if no termination has been made by the Customer, the Customer will be contractually bound in accordance with the terms of Article 10.1 "Contractual Term" above.

 

11.   TERMINATION

 

In the event of a breach by one of the Parties of its contractual obligations, the other Party may give formal notice, by registered letter with acknowledgment of receipt, to remedy the situation within one (1) month.  In the event that this formal notice remains unsuccessful, the aggrieved Party shall have the right to terminate this Agreement ipso jure by registered letter with acknowledgment of receipt subject to a notice period of (1) month.

As an exception to the foregoing, either Party may - without prejudice to any right or remedy - terminate the Agreement early, with immediate effect, by written notice to the other Party, if one or more of the following events occurs:

 

• One of the Parties breaches one of its essential obligations under the Contract, without it being possible to remedy this breach.

 

• One of the Parties has not remedied within the time limit a breach of one of its essential obligations resulting from the Contract after having been given formal notice to do so within thirty (30) working days from the first presentation of the registered letter with acknowledgment of receipt sent to it.

 

• The Party against which collective proceedings have been initiated or its representative in the context of such proceedings shall terminate the Contract under the conditions provided for by the law applicable to that Party in the context of such proceedings.

 

12.   CLAUSE ANTI-CORRUPTION

 

The Parties, their officers, employees, agents and any natural persons or companies that may be involved in the performance of the Agreement shall comply with all applicable statutes, laws, rules and regulations, including, but not limited to, all local and international anti-corruption laws applicable to the performance of its obligations and activities under this Agreement.

Consequently, during the execution of this Contract, the Parties refrain from:

 

• Offer, promise, arrange for payment, or pay, directly or indirectly, for anything of value (including, but not limited to, money, gifts, entertainment and special favors) to any person, including public officials, for the purpose of unduly inducing or omitting to perform their official duties or assisting any Party to this Agreement in obtaining business, to maintain activities or obtain an undue advantage.

 

• Offer or pay informal sums to public officials in order to expedite or obtain routine government actions (including, without limitation, obtaining authorizations, licenses or other official documents; processing government documents such as visas and work orders; protection provided by police, relief and mail delivery, or scheduled inspections associated with the execution of the Contract or the transit of goods from one country to another).

 

• Research, accept or pay for any confidential non-public information regarding competitors, tenders and technical specifications, bids and bid prices.

 

The Parties undertake to immediately notify all other parties of any investigation or legal proceeding initiated by any public authority and relating to an alleged violation of the laws and regulations applicable to the performance of the Agreement by one of the Parties or its affiliates, subsidiaries, officers, employees, agents or any natural or legal person who may be involved in the performance of the Agreement.

The Parties will immediately inform the other parties of the identity and needs of any third party they use or intend to use in connection with any work performed under this Agreement. Any Party using a third party must also conduct an anti-corruption investigation of that third party and share the results with the other Parties.

If either Party fails to comply with the obligations of this Section, the other Party reserves the right to terminate this Agreement in accordance with the "Termination" section.

 

13.   NON-SOLICITATION OF STAFF

 

The parties mutually undertake not to solicit for employment, not to hire the personnel and/or subcontractors of the other party and not to have them work directly or indirectly, or through a third natural or legal person, for the duration of the Contract and for 1 (one) year following the termination of the Contract.

In the event of non-compliance with this non-poaching clause, the party at fault irrevocably undertakes to pay the other party a compensatory indemnity equivalent to one year's salary of the employee concerned, including the related social security contributions.

 

14.   MISCELLANEOUS CLAUSES

• Modification and Nullity

The Contract expresses the entirety of the contractual obligations of the Parties.

The Annexes, initialed by the Parties as a sign of acceptance, form an integral part of the Contract.

Unless otherwise specified, these documents supersede all prior express or implied provisions or agreements, as well as any other prior communication between the Parties relating to the subject matter of the Agreement.

Except as otherwise provided in the Agreement, no modification or waiver of the Agreement or any provision of the Agreement shall be binding on the Parties unless in writing and signed by the Parties. In addition, the Parties agree that in the event that one or more provisions of the Agreement are declared null and void or unenforceable including by a court, this will not affect the other provisions of the Agreement.

 

• Compliance with applicable laws

NETINO declares that it acts in accordance with the laws, decrees and codes in force in the countries concerned by its activity, both with regard to the conditions of employment of its employees and with regard to the declarations and settlements of contributions to the various social organizations.

Also, in accordance with the provisions of Article D8222-5 of the Labor Code, NETINO will communicate at the request of the Customer during the term of the Contract: An extract of the registration in the Trade and Companies Register (KBIS  ) and acertificate  of regularity of declarations and social protection regulations dating back less than one year.

15.   APPLICABLE LAW AND JURISDICTION

 

Any dispute relating to the interpretation and execution of these General Terms and Conditions is subject to French law.

In the absence of an amicable resolution, the dispute will be broughtbefore the Tribunaux de Paris.