1. Object
The General Terms and Conditions apply to the Services provided by SOLIKA Consulting for its clients or contracting parties (hereinafter referred to as "the Client").
2. Contractual Documents
The Contract is constituted, in descending order of priority:
· any possible Special Conditions and their amendments that complement the present ones,
· of the present General Conditions,
· of SOLIKA Consulting's latest Proposal,
· the Purchase Order relating to the Services, where applicable,
· The General Conditions may be supplemented or amended by express Special Conditions.
· These documents constitute the entire agreement between the parties. They supersede all agreements, promises, arrangements and negotiations, whether oral or written, between the parties relating to the subject matter of the Proposal.
· It is agreed between the parties that any terms and conditions, in particular the Customer's general terms and conditions of purchase, which may appear on any document subsequent to the signing of these terms and conditions, such as a purchase order or an invoice, even if signed by SOLIKA Consulting, shall be deemed to have no contractual value.
· All other documents, such as advertising brochures or commercial documents issued by SOLIKA Consulting, have no contractual value.
· The Proposal may only derogate from the General Terms and Conditions insofar as the latter so provide. Any (other) modification to the General Conditions requires the written agreement of a duly authorized representative of SOLIKA Consulting.
· Any order placed with SOLIKA Consulting, any acceptance of a Proposal by the Customer, as well as any commencement of performance of the Services, implies, unless explicitly provided otherwise, acceptance by the Customer of the General Terms and Conditions.
3. Price, fees, payment terms
· The price of the Services is determined on the basis of the rates set out in the Proposal. In the absence of acceptance of the Proposal by the Customer within one month of the date on which it is sent, any price or rate mentioned in the Proposal will be considered null and void. Unless expressly stipulated to the contrary, any estimate of time or days worked, or any other financial indication included in the Proposal, is provided for information purposes only, to enable the Customer's budget to be drawn up.
· Prices agreed between SOLIKA Consulting and the Customer are exclusive of taxes and charges. Prices are indexed to the SYNTEC index. They will be revised on the anniversary date of the start of the Services according to the revaluation of the SYNTEC index, in accordance with the following formula:
· R1 = R0 x S1 /S0
· R1 = Revised price
· R0= Original price
· S0= Latest SYNTEC index published, at the date of the previous revision
· S1= Latest SYNTEC index published at the revision date.
· In the event of a unilateral decision by the Customer to interrupt the Services, the legal provisions shall apply. In particular, for fixed-price Services, articles 1794 et seq. of the French Civil Code will apply.
· Travel and accommodation expenses (hotel and meal costs) incurred by SOLIKA Consulting personnel in the performance of the Contract are invoiced to the Client on the basis of duly justified actual expenses.
· Secretarial, production, reproduction and report publishing costs are invoiced to the customer on the basis of SOLIKA Consulting's rates.
· Unless otherwise agreed in the Proposal and/or in the Special Conditions, a first invoice, representing a deposit of 30% of the total amount agreed in the case of a contractual package, is issued by SOLIKA Consulting as soon as its intervention begins. Subsequent invoices are issued as follows:
· For on-site services: monthly, based on the number of days worked during the previous month;
· For fixed-price Services: monthly or according to the invoicing and payment schedule included in the Proposal.
· Invoices are payable within thirty (30) days of invoice date, without discount, by bank transfer.
· In the event that SOLIKA Consulting's staff is prevented from performing the Services provided for in the Proposal for a reason not attributable to SOLIKA Consulting, SOLIKA Consulting will be entitled to invoice an amount equal to that which would have been invoiced if its staff had been able to perform. This provision does not apply if SOLIKA Consulting is able to assign its staff to other services during the period of forced inactivity.
· Unless postponement is explicitly agreed between the parties, failure by the Customer to pay any of the instalments will result in :
· Automatic application of late payment interest at three times the legal interest rate, without the need for formal notice;
· Immediate payment of all outstanding amounts, regardless of the method of payment;
· Suspension of all Services in progress, whatever their nature and state of progress, until full payment of the sums due, including interest for late payment, without prejudice to any damages and SOLIKA Consulting's right to terminate the Contract.
4. Commitments of SOLIKA Consulting
· SOLIKA Consulting will perform the Services as described in the Proposal.
· SOLIKA Consulting will exercise all due care and diligence in the performance of the Services covered by the Contract and will comply with the rules and practices of the profession.
· For the duration of the Contract, SOLIKA Consulting appoints a Project Manager as the Customer's contact.
· SOLIKA Consulting personnel working on the Client's premises will comply with the Client's internal regulations, which will have been communicated to them prior to their intervention.
· SOLIKA Consulting will inform the Client of any factors which it considers likely to compromise the proper performance of the Services.
· Whatever the cause, SOLIKA Consulting retains the right to replace any member of its team with professionals of an equivalent level, according to the terms and conditions of its choice.
· SOLIKA Consulting will consult with the Customer without delay in order to deal with any situation requiring rapid decision-making.
· SOLIKA Consulting undertakes to comply with the provisions of the French Data Protection Act of January 6, 1978 (amended by Act no. 2004-801 of August 6, 2004).
5. Client Commitments
· Unless otherwise agreed in the Proposal and/or in the Special Conditions, the Customer shall direct and control the Services.
· It is the Customer's responsibility to take all necessary steps to facilitate SOLIKA Consulting's work throughout the duration of the Contract, in particular :
· Carry out the tasks assigned to it in the Proposal and/or in the Special Conditions;
· Appoint a contact person at SOLIKA Consulting;
· Provide SOLIKA Consulting with all information, documents, resources, materials or other, necessary to perform the Services in the best conditions;
· Make available to SOLIKA Consulting the premises necessary for the performance of the Services;
· Provide, where appropriate, tools, software, and all necessary authorizations, such as the right to intervene on systems on which SOLIKA Consulting will be required to intervene and / or SOLIKA Consulting will use as part of the Services;
· Ensure that software licenses and other applications are up to date;
· The customer is responsible for the selection, purchase, follow-up, support and proper operation of the software and hardware;
· Ensure the availability, cooperation and competence of all necessary human resources;
· Consult SOLIKA Consulting without delay in order to deal with any situation requiring rapid decision-making;
· Back up all data, programs and computer files that may be directly or indirectly affected by the Services;
· Sign the work orders presented to it by SOLIKA Consulting and/or carry out validation and/or acceptance operations;
· To obtain and keep up to date, where applicable, all legal, regulatory and/or administrative authorizations that may be required for the implementation of the Services and, in particular, to comply with the provisions of the French Data Protection Act of January 6, 1978 (amended by Act no. 2004-801 of August 6, 2004).
6. Validation and/or Reception
· The various Deliverables that make up the Services are independent in terms of validation and/or acceptance.
· The purpose of validation and/or acceptance is to check that the Deliverables comply with the Specifications.
· Each Deliverable is subject to a separate formal validation and/or acceptance procedure.
· Deliveries of Deliverables for validation and/or acceptance are provided for in the Proposal.
· Unless otherwise agreed in the Proposal and/or in the Special Terms and Conditions, from the date of submission for validation and/or acceptance, the Customer has a period of five working days in which to identify the Anomalies; after this period, validation and/or acceptance are automatically acquired.
· Any production or use of a Deliverable is deemed to be acceptance of said Deliverable.
· The resolution of Anomalies issued during a delivery automatically results in the validation and/or acceptance of the Deliverable concerned.
7. Progress Tracking
· Follow-up meetings are organized by SOLIKA Consulting. Their frequency and agenda are specified in the Proposal.
· The aim of these meetings is to :
· Review the progress of Services;
· Identify, formalize and solve problems;
· Study all work scenarios based on available resources (human and technical);
· Decide on options useful to the progress of the Services.
· Minutes drawn up for approval.
· The customer has 5 days after receipt of each report to make any justified changes. After this period, the report will be deemed to have been automatically approved.
8. Staff of SOLIKA Consulting
· SOLIKA Consulting operates as an independent service provider with no subordination to the Customer. It therefore enjoys the independence of any entrepreneur in the organization of its activity.
· SOLIKA Consulting personnel remain at all times and in all circumstances under the authority, hierarchical power and disciplinary power of SOLIKA Consulting. In its capacity as employer, SOLIKA Consulting is responsible for the administrative, accounting and social management of its personnel involved in the performance of the services provided herein.
· SOLIKA Consulting certifies that the Services are provided by employees who are regularly employed, in particular with regard to the articles of the French Labour Code in force.
9. Additional services
· Services not provided for in the Proposal and/or modifications to the Services may not be undertaken by SOLIKA Consulting without the prior written agreement of the Client and without the parties having agreed on the terms and conditions of their performance and remuneration.
10. Confidentiality
· The parties undertake not to disclose any information or documents marked as confidential and/or communicated by the other party within the framework of the Contract and of which they may have become aware during the performance of the Services and the Contract (the Confidential Information).
· The parties undertake to ensure compliance with this undertaking by their personnel and co-contractors assigned to the performance of the Services.
· Confidential Information may not be used for any purpose other than the performance of the Contract.
· Confidential information does not include :
· which are or would be in the public domain in the absence of any fault attributable to the receiving party;
· which are in the possession of the receiving party prior to their disclosure without having been obtained directly or indirectly from the other party;
· which have been communicated to the receiving party by a third party without any obligation of confidentiality ;
· the disclosure of which is ordered by a final decision of a judicial authority ;
· the disclosure of which is required under applicable law after notification of the disclosing party by letter sent with acknowledgement of receipt as far as possible at least thirty (30) days before the disclosure.
· In addition, each party shall be entitled to disclose any Confidential Information to its insurers, auditors or lawyers, and to administrative or judicial authorities after informing the other party.
· The parties undertake to maintain this Confidential Information during the performance of the Services and for two (2) years after the expiry of the Contract.
· It is tacitly agreed that the Customer undertakes to authorize SOLIKA Consulting to use its name and logo as part of its communication policy for referencing purposes. All other communications made by SOLIKA Consulting concerning the client will be subject to the prior agreement of the client.
11. Intellectual Property
Transferred rights:
· Subject to the rights of third parties (eg publishers), SOLIKA Consulting grants the Client, who accepts, for its own needs, the rights to use, reproduce by loading, display, performance, transmission or storage, modification and correction of SOLIKA Consulting Works received and paid that may be made, developed or written by SOLIKA Consulting specifically for the Client under the present, for the French territory and for the duration of validity of the Deliverables.
· The right of use granted by SOLIKA Consulting to the Client prohibits the Client to market and disclose the Works SOLIKA Consulting.
· SOLIKA Consulting remains the sole owner of all intellectual property rights and know-how used in connection with the Services.
· It is expressly accepted by the Client that the methodology used by SOLIKA Consulting within the framework of the Services constitutes the know-how of SOLIKA Consulting, acquired through its experience.
· The Customer acknowledges that this know-how, which is of significant economic value, is the exclusive property of SOLIKA Consulting, which may freely use it for other services provided to third parties.
· It is also acknowledged that the use of this know-how by the Customer does not constitute a disclosure that would remove its protection. Consequently, the Customer shall refrain from using and/or disclosing this know-how, directly or indirectly, whether for its own benefit or for the benefit of a third party, outside the scope of the present contract.
· SOLIKA Consulting may freely use its rights and know-how in other work carried out for third parties.
Counterfeiting :
· If a third party alleges that the SOLIKA Consulting Works supplied under the Contract constitute an infringement in France of its copyrights, SOLIKA Consulting will defend the Client against this allegation at its own expense and will bear the damages as well as the costs and expenses to which the Client would be condemned on the basis of such an allegation, by a court decision having the authority of res judicata, provided that :
· The Customer shall notify SOLIKA Consulting in writing of any such claim within thirty (30) days of receipt;
· The Client grants SOLIKA Consulting the assistance and information necessary for the execution of the above provisions, the reasonable costs incurred by the Client for this purpose being borne by SOLIKA Consulting ;
· SOLIKA Consulting has exclusive control over the means of defense and complete freedom to sign any settlement.
· If as a result of such action, the Client is prevented from using SOLIKA Consulting Works, SOLIKA Consulting shall have the right to take any measures it deems necessary to avoid the infringement, including:
· Modification or replacement of the part of the Deliverable in question ;
· Or obtaining a license to use the rights that have been infringed.
· Insofar as these measures make it possible to stop the action, SOLIKA Consulting will be released from any liability concerning the said action.
· This expresses the entirety of SOLIKA Consulting's obligations with regard to counterfeiting.
· The CLIENT may not claim any compensation from SOLIKA Consulting if the action in question results from :
· any modification of the Deliverable in question by the Customer that has not been expressly authorized in writing by SOLIKA Consulting ;
· use of the Deliverable in question by the Customer that does not comply with SOLIKA Consulting's written recommendations for use or in violation of the provisions of this Agreement;
· the use of the Deliverable in question in association with products or services not previously recommended or provided by SOLIKA Consulting.
12. Non-solicitation of personnel
· The parties undertake not to employ, directly or indirectly, or call upon the services of any member of the other party's staff, or subcontractors, who have participated in the performance of the Services, both during the term of the Contract and for one year after its expiry, without the written consent of the other party.
· Should either party fail to comply with this obligation, it undertakes to pay the other party an indemnity of not less than twelve months' gross remuneration for the personnel concerned, calculated on the basis of the last full month prior to their departure, notwithstanding the right of the victim party to seek compulsory enforcement of the present clause.
13. Warranty
· If expressly provided for in the Proposal, SOLIKA Consulting guarantees that the IT Deliverables produced as part of the Services will meet the Client's specifications. Under no circumstances does SOLIKA Consulting guarantee the ability of the IT Deliverables to perform particular tasks anticipated by the Client if they are not expressly described in the approved Specifications. From the date of receipt of the IT Deliverables by the Client and during the period defined in the Proposal, SOLIKA Consulting undertakes to correct the reproducible Anomalies causing the non-conformity at no additional cost to the Client in the case of a fixed-price service.
· The warranty does not apply to :
· in the event of modification of the computer deliverables by the customer or a third party,
· anomalies relating to programs and other supplies not produced by SOLIKA Consulting (interfaces, etc.);
· malfunctions caused by incorrect handling;
· requests for comfort improvements and functional upgrades in relation to specifications;
· anomalies related to the operation of the software packages themselves;
· anomalies linked to data quality problems.
· In all cases where the guarantee is not applicable, SOLIKA Consulting's intervention will be invoiced on a time basis according to SOLIKA Consulting's standard rates.
· The stipulations of this article define the entirety of SOLIKA Consulting's warranty obligations.
14. Responsibility
· SOLIKA Consulting's liability is that of a service provider subject to an obligation of means.
· The Customer is solely responsible for the use made of the Services.
· SOLIKA Consulting's liability for any damage resulting from the non-performance or improper performance of its obligations under the Contract, from a fault or breach of Contract is expressly limited, for all causes and all damages, events, claims and sums accrued, for any reason whatsoever, to a maximum amount corresponding to the amount excluding taxes received for the Services which are the subject of the claim, whatever the legal basis of the claim and the procedure used to bring it to a successful conclusion.
· SOLIKA Consulting cannot be held liable for any loss of profit, loss of clientele, loss of data, reduction in profit or sales, damage to reputation, loss of contracts or business prospects, reduction in projected savings.
· SOLIKA Consulting will not be liable for indirect or incidental damages of any nature whatsoever suffered by the Client even if SOLIKA Consulting is aware that such damages may be suffered.
· This limit does not apply to bodily injury, gross negligence or intentional misconduct.
· In the event of a breach by one of the parties of all or part of its contractual obligations, the parties agree that the party affected by the breach will take the necessary measures to minimize its prejudice.
· The Parties acknowledge that the provisions of this clause are decisive in their willingness to enter into this Contract and that the price agreed reflects the allocation of risk between the Parties and the resulting limitation of liability.
15. Major Force
· The liability of the parties is expressly excluded in the event of total or partial non-performance of their obligations if such non-performance is due to the occurrence of an event of force majeure.
· In particular, the following are considered as constituting force majeure: natural disasters, war, epidemics, government restrictions, fire, storms, attacks, strikes outside the company, blockages of means of transport or supply, floods, failure of a subcontractor insofar as this is due to a case of force majeure or other cases of force majeure preventing the normal execution of the Presents.
· However, after a period of thirty (30) days of interruption due to force majeure, either party may choose to terminate the Contract by registered letter with acknowledgement of receipt sent to the other party.
· In this case, the Customer will pay the invoices issued by SOLIKA Consulting and accepted by the Customer until termination of this Agreement.
16. Duration – Termination
· The effective date of the Contract is either the date of acceptance of the Proposal or the date of commencement of the Services, whichever is the earlier.
· The Contract will remain in force until completion of the Services described in the Proposal.
· In the event of a serious breach by one of the parties of its obligations under the present Contract, the other party may terminate the Contract, following formal notice served by registered letter with acknowledgement of receipt which has remained without effect for thirty (30) days from notification, and without prejudice to any damages, at its option.
· In all cases of termination of the Contract, the Services performed by SOLIKA Consulting may not be called into question and the sums due for the Services performed will remain payable and acquired by SOLIKA Consulting, without prejudice to any damages and interest.
· The sections on "confidentiality", "intellectual property", "non-solicitation of personnel" and "liability" will remain in force after the end of this Agreement, including after its termination or cancellation for any reason whatsoever.
17. Subcontracting
· SOLIKA Consulting may only subcontract all or part of its rights and obligations under the Contract after prior written approval by the Client of the subcontractor(s). The Client undertakes to give its approval as soon as possible, failing which to give reasons for its refusal.
18. Cession
· Neither party may assign its rights and obligations under this Agreement unless the other party consents thereto in writing, except to successors in title, coming into the rights of one of the parties exclusively by way of transfer of business, merger or partial contribution of assets. In addition, any party shall have the right to assign this Contract to a company in its group within the meaning of article L 233-3 of the French Commercial Code.
19. Sustainable Development
· SOLIKA Consulting is committed to promoting the United Nations Global Compact.
· To this end, SOLIKA Consulting will:
· to comply with the provisions in force concerning :
· employment law ;
· environmental law ;
· not to contract with subcontractors, whether natural or legal persons, who, to its knowledge, do not comply with the provisions of this article.
20. Divers
· If one or more stipulations of the General Terms and Conditions are declared invalid, the other stipulations will retain their full force and scope.
· The fact that either party does not claim the application of any clause of these General Terms and Conditions or acquiesces in its non-performance, whether permanently or temporarily, shall not be construed as a waiver by that party of the benefit of the said clause.
21. Governing Law and Dispute Resolution
· These General Terms and Conditions and the contractual documents are governed by French law.
· The parties agree that prior to any referral to the Court, they will endeavor to settle their differences amicably.
· IN THE ABSENCE OF AN AMICABLE SETTLEMENT, JURISDICTION IS EXPRESSLY ASSIGNED TO THE VERSAILLES COMMERCIAL COURT FOR ALL DISPUTES ARISING OR LIKELY TO ARISE BETWEEN THE PARTIES IN THE COURSE OF THEIR RELATIONS, NOTWITHSTANDING PLURALITY OF DEFENDANTS OR WARRANTY CLAIMS, EVEN FOR EMERGENCY PROCEEDINGS OR PROTECTIVE PROCEEDINGS BY WAY OF APPEAL OR PETITION.
· Neither party shall bring an action more than two years after the occurrence of the event giving rise to the claim.
22. Definitions
· Anomaly: means any non-conformity of the Deliverables in relation to the Specifications, which prevents the normal operation of the Deliverable or causes an incorrect result.
· Purchase Order: means the attached document by which the Customer orders the Services covered by the Contract.
· General Conditions: means this document which sets out the legal provisions applicable to the provision of the Services.
· Contract: means the Proposal, the General Conditions and the Purchase Order.
· Special Conditions: refers to the document that may supplement or amend the General Conditions.
· Deliverables: means the work carried out by SOLIKA Consulting, on paper and/or in electronic form, which is to be delivered to the Customer under this contract.
· SOLIKA Consulting Work: means a Deliverable of which SOLIKA Consulting is the sole author and which is produced specifically for the Client, to the exclusion of any third-party work.
· Proposal: refers to the document in which SOLIKA Consulting has formalized its technical and pricing offer for Services and which is attached to these General Conditions.
· Services: refers to the Services performed by SOLIKA Consulting and described in the Proposal.
· Specifications: refers to the detailed characteristics of the Services or IT Deliverables developed and supplied by SOLIKA Consulting and validated by the Client.