All terms and expressions referred to below shall, for the purposes hereof, have the meanings set forth below:
The term "Customer" refers to any professional buyer wishing, in the course of his professional activity, to acquire one or more pieces of Software from the Supplier.
General Terms and Conditions of Sale
The term "General Terms and Conditions of Sale" refers to the present general terms and conditions of sale of Software.
The term "Order" refers to any request for Software made by the Customer to the Supplier, formalized in writing either by a request addressed by the Customer to the Supplier and accepted by the latter, or by an estimate signed by the Customer and transmitted to the Supplier within the validity period indicated on it.
Intellectual Property Rights
The term "Intellectual Property Rights" refers to all intellectual property rights as provided for in the Intellectual Property Code and Community and international conventions and, in particular, copyright, derived rights, neighbouring rights of performers and phonographic and videographic producers, trademark law, patents, trade names (including Internet domain names and e-mail addresses) or copyrights, this list being not exhaustive.
The term "Parties" refers collectively to the Customer and the Supplier and the term "Party" refers individually to the Customer or the Supplier.
The term "License" refers to the contract defining the rights and obligations of the Supplier and the author of the Software.
The term "Software" refers to the computer programs marketed by the Supplier (possibly the associated documentation).
The term "Supplier" refers to AGENIUM SCALE, a simplified joint stock company with a capital of 117,600.00 euros, whose registered office is located at 5, rue du Chant des Oiseaux in Montesson (78360), registered in the Versailles Trade and Companies Register under number 749 983 631.
Unless otherwise specified, the meanings of the terms defined above apply to the latter in both the singular and plural.
The purpose of these General Terms and Conditions of Sale is to define the rights and obligations of the Parties in connection with the sale of Softwares offered by the Supplier to Customers, as well as the terms and conditions that apply to them. They specify, in particular, the terms of Order, payment and delivery of Software.
In accordance with the provisions of the Article L. 441-6 of the French Commercial Code, they constitute the sole basis of the commercial relationship between the Parties and apply, without restriction or reservation, to all sales of Software concluded between the Supplier and the Customer.
The General Terms and Conditions of Sale shall be communicated to any Customer who so requests and shall prevail, where applicable, over any other version and/or any other contradictory document, in particular those applicable to other means and channels of distribution and marketing of the Software, and/or the Customer's general terms and conditions of purchase, unless special or categorical conditions are agreed in writing by the Supplier.
Indeed, in accordance with the regulations in force, the Supplier reserves the right to derogate from certain clauses of the present contract depending on the negotiations conducted with a Customer by establishing specific general conditions.
It also reserves the right to establish categorical general conditions of sale, derogating from these General Conditions of Sale, depending on the type of clientele considered, according to criteria that remain objective.
The General Terms and Conditions of Sale may be subject to subsequent modifications by the Supplier. As such, it is specified that the version applicable to an Order will always be the one accepted by the Customer at the time of the Order in question. The modifications of the General Terms and Conditions of Sale cannot, therefore, apply to transactions concluded previously.
These General Terms and Conditions of Sale only apply to Orders placed by Customers established in a member state of the European Union.
The General Terms and Conditions of Sale are valid for an indefinite period of time.
Any Order of Software implies, on the part of the Customer, the acceptance of these General Terms and Conditions of Sale.
The Software offered by the Supplier to the Customer are a standard product designed to satisfy the needs of the greatest number of users.
The information contained in the Supplier's catalogues, prospectuses and prices are given for information purposes only and may be revised at any time. The Supplier is entitled to make any changes that it deems necessary.
The description and main characteristics of Software are presented in the technical manual, installation manual or quotation sent to the Customer. Any photographs and graphics presented on the quotation or any other medium are not contractual and do not engage the responsibility of the Supplier.
The Customer is required to read the technical and commercial documentation relating to Softwares before placing any Order. The Customer may, prior to the validation of the Order, request from the Supplier any additional information, failing which the Customer acknowledges having been sufficiently informed. In particular, the Customer must verify that it complies with all the prerequisites, in particular technical and/or connectivity requirements, allowing the use of the Software, it being specified that the Supplier is not responsible for the unsuitability of the the Software to the Customer's needs; the latter being presumed and deemed to have carried out the necessary checks before any Order.
4.1. Placing an Order
It is the Customer's responsibility to indicate to the Supplier Software he wishes to order, as well as the related quantity within his Order.
THE CUSTOMER IS REQUIRED TO CHECK THE ACCURACY OF HIS ORDER AND TO REPORT ANY ERRORS IMMEDIATELY.
Contractual information is presented in French, and at the Client's request, in English.
Software offers are valid for a period of one (1) month from their issuance, subject to availability.
As a proof agreement, the data recorded in the Supplier's computer system constitutes proof of all transactions concluded between the Supplier and the Customer.
4.2 Modification of the Order
Any Order is irrevocable.
However, when the Supplier agrees, on an exceptional basis, to modify the composition and/or volume of an Order, such modification may only be taken into account after signature of an amendment and possible adjustment of the price.
In the event of a modification of the Order by the Customer, the Supplier shall not be bound by the deadlines initially agreed for its execution.
4.3. Order Cancellation
Any Order is irrevocable.
4.4. Order Refusal
The Supplier reserves the right to cancel or refuse any Order from a Customer with whom there is a dispute relating to the payment of a previous Order or for any other legitimate reason, without the Customer being entitled to claim any compensation.
Software is provided at the rates in effect on the day of the Order and, where applicable, at the rates specified in the specific commercial proposal sent to the Customer, subject to availability on that date. Prices are expressed in euros, presented exclusive of tax and will be increased by the value added tax ("VAT") applicable on the day of the Order. In addition, any change in the rate applicable to VAT will result in a corresponding adjustment to the price of Software.
The rates take into account any occasional promotional discounts that may be granted by the Supplier.
These prices are firm and cannot be revised during their period of validity; the Supplier reserves the right, outside this period of validity, to modify the prices at any time.
The prices do not include processing costs, insurance and, in particular, other charges that may apply, which remain the responsibility of the Customer and which are invoiced in addition, under the conditions indicated at the time of the Order and calculated prior to its placing.
If one or more taxes or contributions, in particular environmental taxes or contributions, are created or modified, either upward or downward, this change may be deducted from the Software sale price.
In consideration for the granting of the right of use on Software, the Customer shall pay a flat-rate fee specified in the Order.
The price is payable exclusively in euros. Any exchange costs being, if applicable, at the Client's expense.
The price is payable all at once, in full at the time of the Order.
The payment requested from the Customer corresponds to the total amount of the purchase, including costs.
We accept payments by credit card as well as those available on the Site.
No discount will be granted in connection with the sale of Software.
6.2. Discounts, rebates and refunds
No quantitative or qualitative price reduction is provided for in connection with the sale of Software.
However, the Supplier reserves the right to set up occasional promotional discounts which will be indicated as such in the quotation or specific commercial proposal sent to the Customer.
6.3. Late payment and compensation
Any amount, including all taxes (including VAT), not paid by the due date of the Order shall give rise to the payment by the Customer to the Supplier of late payment penalties. The applicable rate is set at three (3) times the legal interest rate (hereinafter the "Interest Rate").
The penalties shall be based on the amounts still due by the Customer to the Supplier on the basis of the price including VAT indicated on the invoice (hereinafter the "Balance") and calculated as follows:
Penalties for late payment = (Interest Rate x Balance) x (number of days in arrears / 365)
These penalties shall be automatically payable without formalities or prior formal notice and shall automatically be debited to the Client's account.
In the event of late payment, a flat-rate indemnity for recovery costs of forty euros (€40.00) shall be due, ipso jure and without prior notification, by the Customer to the Supplier. The Supplier may also request additional compensation from the Customer if the recovery costs actually incurred exceed this amount, upon presentation of supporting documents.
6.4. No compensation
Unless expressly agreed in advance in writing by the Supplier, and provided that the reciprocal receivables and payables are fungible, certain, liquid and payable, no compensation may be validly made by the Customer between any penalties for delay in the delivery of ordered Softwares or non-compliance with the Order, on the one hand, and the sums due by the Customer to the Supplier in respect of the purchase of such Software, on the other hand.
6.5. Financial guarantees
All Orders that the Supplier agrees to execute are, taking into account the fact that the Customer provides sufficient financial guarantees, and that he will effectively pay the amounts due on their due date, in accordance with the legislation.
Also, if the Supplier has serious or particular reasons to fear payment difficulties on or after the date of the Order, or if the Customer does not provide the same guarantees as on the date of placing the Order, the Supplier may make the acceptance of the Order or the continuation of its performance subject to the all at once payment or the provision by the Customer of guarantees for the benefit of the Supplier.
The Supplier shall also have the right, before any Order is placed, as in the course of execution, to require the Customer to provide its accounting documents, and in particular the profit and loss accounts, even provisional, enabling it to assess its solvency.
In the event that the Customer refuses to pay all at once, without any sufficient guarantee being offered by the latter, the Supplier may refuse to honour the Order(s) placed and to deliver the concerned Software, without the Customer being able to claim an unjustified refusal to sell, or to claim any compensation.
7.1. Verification of the Supplier's use of Software
As part of the verification of the Customer's use of Software, the Customer is informed that the Supplier reserves the right to integrate a control mechanism into the Software. The Customer shall refrain from defeating this control mechanism.
In addition, the Supplier may carry out an on-site or remote audit once a year to verify that the Customer complies with the terms of these General Terms and Conditions of Sale. The Supplier shall notify the Customer in writing of its intention to have an audit carried out subject to a minimum of thirty (30) days' notice.
To this end, the Supplier shall notify in writing the identity of the audit structure chosen, in the case of an auditor external to the Supplier, and the Software concerned by the said audit.
The Customer undertakes to cooperate actively in this audit, in particular by giving the Supplier access to all relevant information and by providing the necessary means to carry out the audit. It is expressly agreed that any costs incurred by the Client for its collaboration in this audit will remain at its expense.
The results of the audit will be formalized in an audit report prepared by the Supplier, which it will send to the Client so that the latter can submit its observations within sixty (60) days. In the event of a dispute, the Parties undertake to try to find an amicable solution before any legal action is taken.
In the event that the audit reveals that the use exceeds the right of use granted, the additional royalty will then be invoiced to the Customer as well as the audit costs incurred by the Supplier. In addition, in the event that the Customer uses a function or option for which it has not acquired a right of use, an additional fee will also be charged to the Customer, in accordance with the rates in force.
The Client's information collected during the audit operations will be considered as confidential information within the meaning of Article 14 hereof and may only be used for the purposes of the audit and any necessary regularisations and/or in the event of legal proceedings.
7.2. Device for controlling access to Software
The Customer is informed that the Supplier reserves the right to use a locking system and/or a license authorization key to control access to the Software. The Customer is not authorized to neutralize the implemented system.
The Customer is solely responsible for the backup of the data he processes or stores as part of his use of the Software, and acknowledges that it is his responsibility to make backups of this data at a regular pace and adapted to his activity and to regularly check the content of the backups performed.
Prior to any intervention by the Supplier, the Customer undertakes to carry out a backup of all its data.
The Customer must take all necessary measures to protect his information system, in particular protection against viruses, worms and other hostile intrusion processes.
Any restoration or reconstitution of lost or damaged data, programs or files is not covered by these General Terms and Conditions of Sale.
9.1. Delivery terms and conditions
The Software is made available to the Customer by means of a download link indicated on the order form or quotation or by providing a physical medium on which the Software is copied.
The installation of the Software will be carried out by the Customer under his own responsibility, in accordance with the technical manual or the installation manual.
The Customer must inform the Supplier in writing, stating the reasons for any non-conformity of the Software with the Order, within two (2) working days following the download. After this period, the Customer is deemed to have irrevocably accepted the Software without reservation.
9.2. Delivery times
The Supplier undertakes to make its best efforts to deliver the Software ordered by the Customer within a maximum period of seven (7) days from the Customer's Order, unless otherwise specified. The delivery time is given at the time of the Order.
However, these deadlines are communicated for information purposes only and the Supplier shall not be held liable to the Customer in the event of a delay in delivery not exceeding thirty (30) working days.
If the ordered Software has not been delivered within thirty (30) working days after the indicative delivery date specified to the Customer, for any reason other than force majeure or the Customer's fault, the sale may be cancelled at the written request of the Customer sent to the Supplier by registered letter with acknowledgement of receipt.
The sums paid by the Customer in connection with the Order concerned shall then be returned to him at the latest within fourteen (14) working days following the date of termination of the contract, excluding any compensation or withholding.
Any modification of the installation of the Software or its environment will be carried out under the responsibility of the Customer.
As the Client is a professional purchasing within the framework and for the needs of his profession, the right of withdrawal provided for by the Consumer Code will not apply between the Parties, subject to any exceptions provided for in Article L. 221-3 of the said Code.
The Software sold by the Supplier complies with the regulations in force in France and is intended for professional use.
The Supplier may only be held liable in the event of proven fault or negligence and is limited to direct damage to the exclusion of any indirect damage of any kind whatsoever.
The Supplier shall not be liable to the Customer for any conventional warranty with respect to the Software. However, AGENIUM SCALE may mention the warranties applicable by the author of the Software concerned as well as those stipulated in the license agreement.
MORE GENERALLY, THERE IS NO WARRANTY BEYOND THE WARRANTY SET FORTH HEREIN AND ANY IMPLIED WARRANTY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXPRESSLY EXCLUDED. NO RESELLER IS ENTITLED TO MODIFY THE CONDITIONS AND LIABILITY CLAUSES SET OUT ABOVE.
In any event, in the event that the Supplier's liability is retained, the guarantee due by the Supplier shall be limited to the amount before tax paid by the Customer for the purchase of the Software(s) concerned.
The Supplier may under no circumstances be held liable in the following cases:
negligence or fault of the Client;
delay or suspension of delivery of the Software due to the Customer;
non-performance or improper performance due to the Customer's fault or resulting from non-compliant use of the Software;
use of the results of the Software, for a purpose or in a context different from that in which it was used, incorrect implementation of the recommendations or failure to take into account the Supplier's reservations;
facts and/or data that do not fall within the scope of the Software, and/or are not an extension thereof;
force majeure event.
In addition, neither the Supplier nor its insurers are liable for loss of profit, loss of opportunity, loss of expected profits or financial consequences of any actions brought by third parties against the Customer.
13.1. Intellectual Property
The Supplier, its partners or the authors of the Software alone hold and keep all the Intellectual Property Rights relating to the Software, as well as the photographs and technical documentation relating thereto.
In addition, the Supplier, its partners or the authors of the Software, remain the owners of all Intellectual Property Rights on their possible trademarks as well as on photographs, presentations, studies, drawings, models, prototypes, etc., made in order to supply the Software to the Customer.
Consequently, the Customer only acquires from the Supplier a personal, non-exclusive, non-transferable and non-transferable right of use of the Software.
In addition, in accordance with Article L. 122-6-1 I of the French Intellectual Property Code, the author of the concerned Software reserves the right to correct any anomalies that may be noted.
13.2. Right of use
The term of the grant of the right of use shall be equal to that set forth in the Order or License issued by the author of the Software.
The right of use is granted to the Customer for a number of named users and/or for any other work units expressed in terms of quantities, thresholds or ceilings, these elements being specified in the Order or in the Licence issued by the author of the Software.
The Customer acknowledges and accepts that the scope of the right of use granted for each of the Software subject to the Order constitutes a single and non-divisible concession.
13.3 Customer's Obligations
As part of the concession of the right of use granted to the Client, the latter undertakes not to infringe directly or indirectly the Intellectual Property Rights of the author of the Software and in particular:
undertakes to use them only in accordance with their professional purpose, i.e. in accordance with their associated documentation and for the sole purpose of its activity;
undertakes not to remove any mention concerning trademarks or proprietary notices;
refrains from making them available to third parties, directly or indirectly, for any reason whatsoever, in any form (in particular through the "Hosted Application Provision" mode, rental, loan, shared use) and for any reason whatsoever, free of charge or against payment, except with the prior, express and written authorisation of the Supplier or unless expressly authorised in the Order or in the Licence issued by the author of the Software. In the event that the Customer shares a site with third parties, he undertakes to take all necessary measures to ensure that such third parties cannot benefit from the right of use or access the Software;
refrains from copying them, except to make a backup and this only for security purposes;
undertakes not to disclose the content or transfer its right of use for any reason whatsoever;
guarantees that its staff comply with this article.
The Customer shall refrain from making any corrections to errors, modifications, adaptations or translations of the Software.
In accordance with Article L. 122-6-1-IV of the French Intellectual Property Code, the Customer undertakes not to decompile the Software for interoperability purposes, the author of the Software undertaking, unless expressly agreed otherwise, to provide the Customer, within a reasonable time, with all information necessary for the interoperability of the Software with the Customer's information system existing on the date of the Order.
The Customer undertakes not to use the knowledge it may have acquired during the operations defined above for any purpose other than interoperability, to the exclusion of any creation, production or marketing of software whose basic expression and principles would be similar to those of the Software.
Each Party undertakes not to disclose confidential information received from the other Party. Confidential information refers to information of any kind, visual or oral, on any medium whatsoever, relating to the structure, organization, business, various internal policies, projects and personnel of each Party, not in the public domain (hereinafter referred to as "Confidential Information" or "Information"). The content of the Services as well as the reports, letters, information, notes, quotations provided by the Supplier in connection with the delivery of the Software are also confidential. These documents are communicated to the Client for strictly internal use and on condition that they are not disclosed to third parties or attached to a document that the Client may produce. If the Customer wishes all or part of these documents to be disclosed to and/or used by a third party, he must request prior written authorization from the Supplier. The terms and conditions applicable to such disclosure shall then be determined by mutual agreement between the Supplier and the Customer.
Information and/or documents of which one of the Parties may have accidental knowledge are also considered Confidential Information within the meaning of these General Terms and Conditions of Sale.
Each Party undertakes to inform its partners of the confidential nature of the above-mentioned Information and shall support them in the treatment of the Confidential Information in accordance with the provisions of this Article.
The Parties are authorized to disclose Confidential Information (i) by order of a court or competent administrative authority, (ii) at the request or at the request of a regulatory authority, or under any regulation of the latter, (iii) in connection with the exercise of a remedy hereunder, and (iv) to the independent experts, legal advisors or auditors of a Party.
15.1 Legislative developments
The Customer is informed that legislative changes may, at any time, render the Software's functionalities inappropriate. The Supplier shall provide an update of the Software in accordance with the new legal provisions, provided that such adaptations or evolutions do not require the rewriting of a substantial part of the existing Software.
15.2 IT developments
It is the Client's responsibility to ensure the evolution of its equipment and IT systems in accordance with the evolution of the prerequisites, in particular technical or connectivity requirements.
The Parties may not be held liable if the non-execution or delay in the execution of any of their obligations, as described herein, results from a case of force majeure within the meaning of Article 1218 of the Civil Code.
In particular, the following are considered to be cases of force majeure or fortuitous circumstances relieving the Supplier of its obligation to deliver the Software within the time limits initially provided for: strikes by all or part of the Supplier's personnel, fire, flood, war, production stoppages due to accidental breakdowns, inability to be supplied with raw materials, epidemics, thaw barriers, roadblocks, blocking or disruption of means of communication, telecommunications or postal services, interruption or blocking of the electricity networks, strikes or disruptions in EDF-GDF (French energy supplier) supply, or disruptions in supply for a reason not attributable to the Supplier.
The Party noticing an event of force majeure shall immediately inform the other Party of its inability to perform its obligation and justify this to the other Party. This information must be provided by the Party concerned within a reasonable time from the date of occurrence of the event(s) of force majeure by any written means, in particular by mail, fax or e-mail. The suspension of obligations may under no circumstances be a cause of liability for failure to perform the obligation in question, nor induce the payment of damages or penalties for late payment.
In such a case, the performance of the obligation shall be suspended for the duration of the force majeure if it is temporary. Consequently, as soon as the cause of the suspension of their mutual obligations has disappeared, the Parties shall make every effort to resume normal performance of their contractual obligations as soon as possible.
If the event lasts more than thirty (30) working days from the date of its occurrence, the contract of sale concluded between the Parties may be terminated by the most diligent Party, without any of the Parties being entitled to claim damages. This resolution will take effect on the date of first presentation of the registered letter with acknowledgement of receipt denouncing the said contract.
It is the Client's responsibility to carry out the procedures, declarations, requests for authorization provided for by the laws and regulations in force concerning the processing it carries out and the data processed. The Client guarantees that he uses the Software provided by the Supplier in compliance with applicable laws and regulations, particularly in tax matters.
More particularly, in the event that the Supplier is held jointly and severally liable by the tax authorities for the payment of reminders of rights issued due to the irregular use by the Customer of the Software made available to him, the Customer undertakes to compensate the Supplier in full, i.e. up to the amounts claimed by the authorities.
18.1. Resolution for unforeseen circumstances
The resolution for the impossibility of performing an obligation that has become excessively onerous may only be made seven (7) days after the sending of a formal notice stating the intention to apply this clause notified by registered letter with acknowledgement of receipt or extrajudicial act.
18.2. Resolution for failure to fulfil a sufficiently serious obligation
In the event of a sufficiently serious breach of any of the obligations incumbent upon the other Party, the defaulting Party may, in the event of a sufficiently serious breach of any of the obligations incumbent on the other Party, notify the defaulting Party by registered letter with acknowledgement of receipt, of the wrongful resolution of the present contract, seven (7) days after the sending of a formal notice to comply, which has remained unsuccessful, pursuant to the provisions of article 1224 of the Civil Code.
18.3. Common provisions
For the application of this article, it is however expressly agreed between the Parties that the debtor of an obligation to pay hereunder shall be validly put in default by the sole exigibility of the obligation, in accordance with the provisions of article 1344 of the Civil Code.
The services exchanged between the Parties from the conclusion of the contract to its resolution, which can only be useful if it is fully performed, will be returned in full.
Any contract resolution of sale due to the default of a Party may give rise to the payment of damages to the non-defaulting Party after the latter has demonstrated the actual damage incurred and the costs incurred as a result of the contract resolution.
The right to compensation will be limited to direct and certain damages only, excluding any indirect or potential damages.
19.1. Applicable law - Language of the contract
These General Terms and Conditions of Sale and the transactions resulting from them are governed by and subject to French law, to the exclusion of any other law.
The General Terms and Conditions of Sale are written in French. In the event that they are translated into one or more foreign languages, the French text alone shall prevail in the event of a dispute.
19.2. Attribution of jurisdiction
ANY DISPUTE RELATING TO THE APPLICATION, VALIDITY, INTERPRETATION, EXECUTION OF THESE GENERAL TERMS AND CONDITIONS OF SALE AND/OR RELATING TO THE SALES CONTRACTS CONCLUDED BETWEEN THE PARTIES AND/OR THE PAYMENT OF THE RELATED PRICE SHALL BE DEEMED TO HAVE FAILED AFTER ANY ATTEMPT TO FIND AN AMICABLE SOLUTION, SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE PARIS COURT OF APPEAL, EVEN IN THE EVENT OF AN INCIDENTAL CLAIM, GUARANTEE CALL OR MULTIPLE DEFENDANTS.
20.1. Severability of clauses
The fact that any clause of the General Terms and Conditions of Sale becomes null, unenforceable, null and void, illegal or inapplicable, shall not affect the validity of these terms and conditions and shall not exempt the Customer from their performance. Provisions declared null and void or unenforceable shall be replaced by provisions of the same nature or basis.
In the event of any difficulty of interpretation between any of the titles appearing at the top of the clauses of the General Terms and Conditions of Sale and any of these clauses, the titles will be declared non-existent.
The fact that the Supplier does not at any given time invoke any of the clauses of these General Terms and Conditions of Sale shall not constitute a waiver of the Supplier's right to invoke these same clauses at a later date.
These General Terms and Conditions of Sale as well as the prices and scales are expressly agreed and accepted, without restrictions or reservations, by the Client, who declares and acknowledges that he is fully aware of them, and therefore waives the right to rely on any contradictory document and, in particular, his own general terms and conditions of purchase.
The Customer also acknowledges that it has the capacity to contract and acquire the Software.