KEYneosoft/02072013 GENERAL CONDITIONS OF SALE
PROVISION OF COMPUTER SERVICES, GRAPHICS, ASSISTANCE AND CONSULTANCY
These General Conditions of Sale ("Conditions") govern all offers made by KEYNEOSOFT and LA MOBILERY or any order or contract between KEYNEOSOFT or LA MOBILERY and the client concerned ("the Client") relating to the provision by KEYNEOSOFT or LA MOBILERY of services ("the Services").
A contract in force between the parties, or an offer, quote or purchase order from KEYNEOSOFT or LA MOBILERY accepted by the Client, or a Client's order accepted by KEYNEOSOFT or LA MOBILERY, will be hereinafter known as "the Contract". When the Conditions are part of the Contract, they exclude all stipulations or conditions, of any nature whatsoever, not agreed upon in writing between KEYNEOSOFT or LA MOBILERY and the Client. In the event that the Contract may contain provisions inconsistent or conflicting with the Conditions, these provisions shall take precedence over the Conditions.
1 - PRICES
The prices indicated in the Contract are established according to the set of conditions relating to the Contract. In particular, and without limiting the generality of the foregoing, it is understood that:
- the modalities of receipt of the Service shall be those referenced by paragraph 3 below,
- all taxes and tax levies on or outside French territory and relating to the Contract, whether applicable at the time of signing the Contract or introduced subsequently, shall be incurred and paid by the Client in addition to the Contract price,
- travel expenses are charged in addition to the price of the Contract.
2- PAYMENT TERMS
Unless otherwise provided in the Contract, the currency of account, billing and payment under the Contract shall be the euro.
The total price of the Contract shall be billed to the Client in the following manner:
- forty percent (40 %) of the total Contract price as a deposit, as a condition of entry into force of the Contract;
- the balance in accordance with the payment schedule specified in the Contract or in KEYNEOSOFT or LA MOBILERY business proposal.
Unless otherwise provided in the Contract, the payment of the total price of the Contract shall be made by bank transfer, to the account whose details shall be provided by KEYNEOSOFT or LA MOBILERY to the Client.
The prices indicated in the Contract shall be payable upon receipt of invoices and not later than 10 days after the date of invoice.
3- CONFORMITY OF THE SERVICE AND ACCEPTANCE BY THE CLIENT
The Service shall be inspected and subject to the standard tests of KEYNEOSOFT or LA MOBILERY.
Where the Service requires acceptance, this shall be defined by an acceptance report drawn up jointly by the Parties. In the event of the Client's absence from the acceptance process or in the event of the unjustified absence of the Client's signature from the acceptance report within a period of 5 working days from the end of the reception process, KEYNEOSOFT, or LA MOBILERY shall be entitled to sign the report alone, it then having the same validity as if it had been signed by both parties.
All claims in respect of the conformity of the Service to the contractual specifications shall be made by the Client at the time of acceptance of the Service.
In the event of reservations expressed during acceptance, KEYNEOSOFT, or LA MOBILERY shall take the necessary actions to resolve these reservations as soon as possible and shall advise the Client of the completed execution of the Services. The absence of a Client response within 10 working days of notice given by the Service Provider of the completed delivery of the Services shall constitute the withdrawal of reservations and acceptance.
4- TRANSFER OF RISK AND OF OWNERSHIP
In respect of specific Services (excluding licenses or components belonging to KEYNEOSOFT or LA MOBILERY), and if the Client has made the relevant written request prior to the signing of the Contract, the transfer of ownership of these specific Services shall be effective on the day of the final acceptance of the Services, subject to the payment in full of the price under the Conditions defined above.
In the event of incomplete or non-payment of an invoice by its due date, and in the absence of any response to a formal notice within 48 hours, KEYNEOSOFT, or LA MOBILERY reserves the right to suspend the performance of the Service.
The transfer of risk relating to the object of the Service shall take effect upon final acceptance of the Service. However, where the Contract provides for provisional or interim acceptance, the transfer of risk corresponding to the share of the Service which is the subject of such a provisional or interim acceptance shall take place on the day of the said provisional or interim acceptance.
5- IMPLEMENTATION OF SERVICES ON SITE
If the Contract provides for the performance of a Service by KEYNEOSOFT or LA MOBILERY on the Client site, the latter shall, at its own expense:
- prepare the site in a timely manner in accordance with the technical requirements of the Contract; and
- make available to KEYNEOSOFT or LA MOBILERY on site all necessary means (labour, tools, offices, etc.) necessary for the performance of the Service.
6 - RESPONSIBILITY
KEYNEOSOFT or LA MOBILERY shall be responsible vis-à-vis the Client for damage directly resulting from the execution, the poor execution or the breaching of its obligations, it being understood that, in any event, the cumulative total of damages likely to be caused by KEYNEOSOFT or LA MOBILERY in the context of the Contract shall not exceed the total amount excluding taxes of the Contract, actually paid by the Client up to the day of the claim. KEYNEOSOFT or LA MOBILERY shall in no case be held liable for compensation for indirect damage, in particular the loss of revenue or productivity, loss of earnings, damage to the brand image, incorrect data or content, loss of data, even if KEYNEOSOFT or LA MOBILERY has been advised of the possibility of such damages.
7- EXONERATING CAUSE
KEYNEOSOFT or LA MOBILERY shall not be responsible vis-à-vis the Client if the former cannot perform its obligations in accordance with the Contract due to the occurrence of an event beyond its reasonable control, due to a delay in the Client's obligations (deliverables, inputs, deadlines for validation...) or due to acts or omissions attributable to the Client. In this case, the schedule shall be automatically extended by the number of days required to overcome the exonerating cause. The execution of the Contract shall be resumed as soon as possible after the cessation of the exonerating cause. If the effects of the exonerating cause last for more than three (3) months, KEYNEOSOFT, or LA MOBILERY shall have the right to terminate the Contract.
8 - INTELLECTUAL PROPERTY RIGHTS
Notwithstanding the acquisition by the Client of the physical property of specific Services (art 4 above), all industrial and/or intellectual property rights relating to licenses and components provided by KEYNEOSOFT or LA MOBILERY and to the associated integration Services shall be, subject to the rights of third parties, the exclusive property of KEYNEOSOFT or LA MOBILERY. Therefore, it is expressly understood that KEYNEOSOFT or LA MOBILERY retains full ownership of licenses, components and associated integration Services, of the expertise and methodologies used in the performance of Services, and that it reserves the right to re-use these, including to the benefit of other clients, in respect of its obligation of confidentiality.
9- ENTRY INTO FORCE OF THE CONTRACT
The date of entry into force of the Contract shall be the date on which the deposit referred to in paragraph 2 is received by KEYNEOSOFT or LA MOBILERY. For technical support orders, the date of entry into force of the Contract is the date of the acceptance by KEYNEOSOFT or LA MOBILERY of the Client's order. If these Conditions are not fulfilled within a time period of forty-five (45) days after the signing of the Contract, the Contract shall be deemed null and void.
10 - TERMINATION
A party may terminate the Contract, as of right and without further formality, by written notification to the other party having immediate effect, if the other party seriously fails in its obligations under the Contract and does not correct this breach within a period of sixty (60) days after a first notice in writing made by the complaining party. The termination of the Contract, for whatever reason, shall be without prejudice to the claims that each of the Parties shall be entitled to make against the other party relative to the Contract and/or its termination. In the event of cancellation or termination of the Contract by the Client, any Service started will be due in full.
11 - CONFIDENTIALITY
Each Party undertakes not to disclose to third parties, in any manner whatsoever, all or part of the documents, data and information of the other Party to which it may have had access during the Contract. This obligation of confidentiality shall remain valid for five (5) years beyond the end date of the Contract or of the date of its termination.
12- NON-SOLICITATION OF STAFF
The Client undertakes, during the period of validity of the Contract, not to directly or indirectly employ or offer to employ, by any means and in any capacity, one or several members of the staff of KEYNEOSOFT or LA MOBILERY involved in the execution of the Contract.
In the event of non-compliance with this solicitation clause, the Client shall pay KEYNEOSOFT or LA MOBILERY fixed compensation equal to twelve (12) times the last month's gross salary of the member(s) of staff concerned.
KEYNEOSOFT or LA MOBILERY reserves the right to subcontract all or part of the Services.
In this case, KEYNEOSOFT or LA MOBILERY shall remain guarantor of the proper execution of Services vis-à-vis the Client.
14- APPLICABLE LAW AND SETTLEMENT OF DISPUTES
The Contract shall be governed by French law. Any disputes, controversies or claims arising during or in connection with this Contract shall be submitted to mediation in accordance with the mediation rules of the Centre for Mediation and Arbitration of which the Parties are members, and, in the event of the failure of this process, shall be brought before the Commercial Court of Lille within a period not to exceed two months (unless extended by mutual agreement by the parties) dating from the occurrence of the dispute, controversy or claim.