General Terms and Conditions of Sale
ARTICLE 1 : PURPOSE AND SCOPE
Any service provided by the company Datashield Consulting implies the unconditional acceptance of these general terms and conditions of sale by the buyer. Any order implies the unconditional acceptance of these general terms and conditions by the Client, which prevail over any other conditions, except those expressly accepted by Datashield Consulting.
I. These General Terms and Conditions aim to define the terms governing any contract concluded between Datashield Consulting and a Client. By entering into a contract with Datashield Consulting, the Client agrees to be legally bound by these General Terms and Conditions.
II. Exceptions to these General Terms and Conditions may be made through specific negotiated provisions between Datashield Consulting and the Client.
RTICLE 2 : LEGALITY OF OPERATIONS
I. Datashield Consulting and the Client confirm that the legal conditions necessary for the execution of the services provided in the contract are met at the time of contract conclusion.
II. By accepting the contract, the Client acknowledges having all the necessary rights to implement the services. In particular, the Client acknowledges having all the necessary accesses covering the scope of the services.
III. In the event that the condition stated in (II.) of this article is not met, Datashield Consulting, as soon as it becomes aware of it, may interrupt the services. If the Client rectifies the situation within 15 days, Datashield Consulting will resume the provision of services as soon as possible, and any resulting delay cannot be attributed to Datashield Consulting. If the Client fails to rectify the situation within the 15-day period, full payment for the services will be invoiced upon the expiration of this period.
ARTICLE 3 : QUOTATION
In the case of a simple quotation, rather than a service contract, it will be provided free of charge. In the case of a quotation requiring technical analysis, it will be invoiced to the Client at the prevailing rate, subject to the Client's agreement. The quotation fees may be deducted from the order fees under certain conditions and within a maximum period of one month from the quotation date. In this case, no quotation update fees will be charged. A meeting with the Client may be arranged to conduct the technical analysis. In order to prevent abuse, any travel expenses will be invoiced by Datashield Consulting at the prevailing rate. Any quotation provided loses its validity one month after its issuance, and a new quotation may be requested.
ARTICLE 4 : CONTRACT FORMATION
I. Any service ordered from Datashield Consulting constitutes an offer for a contract (referred to as "technical and commercial response") with detailed pricing, sent to the Client and valid until a individually defined date. After this date, the offer becomes invalid and no longer applicable.
II. The Contract is deemed validly formed upon the Client's acceptance of this offer within the specified time frame.
ARTICLE 5: TERMS OF IMPLEMENTATION SERVICES AND SUPPORT SERVICES
I. Prior to the execution of implementation services (analysis, installation, configuration, training, data migration, etc.), the Client shall take all necessary measures to ensure the protection of their computer equipment.
II. The Client agrees to provide Datashield Consulting with access to all information deemed necessary by the latter to perform the implementation services.
III. The content, terms, and conditions of the support services will be detailed in the commercial proposal prepared by Datashield Consulting and accepted by the Client prior to any intervention.
ARTICLE 6 : CONDITIONS FOR SOFTWARE/PROGRAM DELIVERY
The software and programs remain the property of their author. Therefore, the Client only acquires, through the contract, a personal, non-exclusive, non-transferable, and non-assignable right to use the programs. Within the framework of the rights granted to the Client by the author, the Client undertakes, in particular, to use the programs strictly in accordance with their intended purpose, meaning in accordance with their functionalities and the technical recommendations provided by the publisher, as stated in the appendix of the commercial proposal sent to the Client. The Client shall not copy the programs or make them available to third parties or disclose their content. The Client shall only use the provided programs on the professional device on which they have been installed.
ARTICLE 7 : AUDIT SERVICES
I. Start of the service: a. If audit operations are planned, they can only begin after authorization to start has been given by the Client.
b. This authorization is formally given by email, following a phone interview.
c. Unless otherwise agreed, this authorization is given at least 10 (ten) days before the desired start date.
II. Performance of the service: a. Datashield Consulting will perform the service specified in the Contract in accordance with the objectives pursued by it and mutually agreed upon with the Client.
III. Communication during the performance of the service: a. During the performance of the service, the parties to the Contract will primarily communicate by phone and email exchange. In case of emergency, Datashield Consulting has the phone contact details of the Client's Audit Correspondent.
b. In the event of an audit, a closing meeting will take place after the report has been submitted, as mutually agreed upon by the parties. In addition, prior to the delivery of the final report, an initial presentation will be conducted via phone.
c. If Datashield Consulting becomes aware of any breach of the obligations stipulated in the Contract, it shall immediately inform the Client.
ARTICLE 8 : ORDERS
Sales of products and services are only considered final upon acceptance by the Client of the commercial proposal prepared by Datashield Consulting based on the expressed needs of the Client, indicated by the mention "Bon pour accord" (Approval) and the signature. The acceptance of the quote or technical and commercial proposal by the Client must be accompanied by a dated and signed copy of the document, along with the payment of the deposit, and will be considered fully executed upon receipt of the full amount due for the subscribed year (unless a pre-established installment schedule is agreed upon). Any modifications to the order requested by the Client will be considered, within the limits of Datashield Consulting's capabilities and at its sole discretion, only after the signing of a specific purchase order and possible price adjustment. In the event of order cancellation by the Client after its acceptance, for any reason other than force majeure, any deposit paid for the order will be automatically acquired by Datashield Consulting and will not be subject to any refund. In the absence of a deposit, an amount corresponding to 30% of the total amount including taxes (TTC) of the invoice will be acquired by Datashield Consulting as damages and interest.
ARTICLE 9 : DELIVERIES / INTERVENTIONS
The products and services ordered by the Client will be delivered/performed within the timeframe indicated in the commercial proposal prepared by Datashield Consulting. The delivery and intervention deadlines are provided for informational purposes only and are not binding. Any delay in delivery or intervention shall not result in any penalty, compensation, or justification for order cancellation or termination of the sale. The products are considered delivered once made available to the Client at the premises of Datashield Consulting. The products travel at the risk and expense of the Client. In the event of a shortage of personnel (due to illness, leave, etc.) to perform a service, Datashield Consulting will notify the Client, and the order deadline may be postponed.
ARTICLE 10 : PRICES
I. The products and services are provided at the prices stated in the commercial proposal sent to and accepted by the Client. These prices are firm and non-revisable during their validity period. Consequently, they will be increased by the applicable VAT rate and transportation costs on the day of the order. The price of the order is the price indicated in the quote or as calculated according to the pricing terms mentioned therein. Any price modifications can only result from an amendment to the order after acceptance by Datashield Consulting.
II. The proposed prices include any discounts and rebates that Datashield Consulting may grant based on its results or the buyer's assumption of certain services.
III. No discount will be granted for early payment.
ARTICLE 11 : INVOICING AND PAYMENT TERMS
I. a. The Client is committed to the order once they sign a purchase order or a quote. Following this commitment, the invoice will be sent to the department designated by the Client. The invoice will include the details of the contract and will be provided in digital format as part of Datashield Consulting's environmental policy. If the Client wishes to receive their invoices by regular mail, they must request it from Datashield Consulting. The exact payment conditions and schedule will be specified on each invoice. Payment must be made within a maximum period of 15 (fifteen) days after the invoice date.
b. Unless otherwise specified, the remaining balance of the price is payable on the day of product installation at the Client's premises, regardless of the expected date of additional services. Orders for products and/or services with a total amount including taxes (TTC) less than 500 euros will require immediate payment upon sale or completion of the service. Payments can be made by check, direct debit, or bank transfer.
II. Deposit: For all orders and services, the Client must provide a deposit equal to the "deposit" amount indicated on the purchase order or quote, or a minimum of 30% of the total order and service amount. The deposit must be included with the purchase order or quote when they are signed.
III. Late or non-payment: a. In the event of total or partial non-payment of the services delivered on the day of receipt, the buyer must pay Datashield Consulting a late penalty equal to three times the legal interest rate. The applicable legal interest rate is the rate in effect on the day of delivery of the goods.
b. Failure to pay by the due date automatically results in the application of late payment penalties amounting to 12% per year on the remaining amounts due. These late payment penalties are due from the first day of delay and will be invoiced by Datashield Consulting without the need for a formal notice. This clause will be definitively acquired by Datashield Consulting without the need to prove any damage. Any payments already made will remain with Datashield Consulting. Failure to pay by the due date also entitles Datashield Consulting to claim a lump sum compensation for recovery costs, the amount of which is set by decree. If the actual recovery costs exceed the amount of this lump sum, the creditor may request additional compensation upon justification. Monthly services are automatically renewed annually. If the Client fails to comply with the specified payment terms, Datashield Consulting reserves the right to suspend any services without prior notice.
c. Starting from January 1, 2015, the legal interest rate will be revised every 6 months (Order n°2014-947 of August 20, 2014). This penalty is calculated based on the VAT-inclusive amount of the outstanding sum and accrues from the due date of the price without any prior formal notice being required.
d. In addition to late payment penalties, any amount, including the deposit, unpaid on its due date, will automatically incur the payment of a fixed compensation of 40 euros for recovery costs. Articles 441-6, paragraph 12, and D. 441-5 of the French Commercial Code.
e. If the actual recovery costs exceed this fixed amount, they may be charged to the defaulting Client upon presentation of supporting documents.
ARTICLE 12 : ACTIONS ON THE IT PERIMETER
I. The Client authorizes Datashield Consulting to access and maintain itself within the perimeter of the information system targeted by the contract.
II. The Client authorizes Datashield Consulting, within the perimeter of the information system targeted by the contract, to process, reproduce, collect, and analyze all data necessary for the completion of the service, and solely for the purpose of performing the service.
Datashield Consulting ensures the security of the information in order to preserve their confidentiality, integrity, and availability for the Client.
ARTICLE 13 : TERMINATION
I. a. If within 15 (fifteen) days following the implementation of Article 11: "INVOICING AND PAYMENT TERMS," the Client has not paid the remaining amounts due, the Contract will be terminated automatically, without any need to file a legal claim, and may entitle Datashield Consulting to claim damages.
b. In the event of early termination due to the Client's fault, all fees paid by the Client will remain definitively acquired by Datashield Consulting, and the fees due until the end of the Contract will become immediately payable and must be settled by the Client within 15 days from the effective date of termination.
ARTICLE 14 : OBLIGATIONS AND INTELLECTUAL PROPERTY RIGHTS
I. The use of pre-existing works, including the provider's trademark, logo, and other tangible and intangible assets belonging to Datashield Consulting, is strictly prohibited. A written request must be systematically made by the Client to Datashield Consulting to obtain their use. The provider reserves the exclusive right to grant the use of its trademark, logo, and other tangible and intangible assets under certain conditions. Datashield Consulting remains the owner of its codes, tools, methods, proprietary documentation, and know-how, which it may have used in the context of the contract. Therefore, nothing in the contract prohibits Datashield Consulting from using the same tools, methods, proprietary documentation, and know-how for its other clients, for a fee or otherwise. Upon payment of all amounts due under an order, the Client shall have the right to use the results for its internal use only, including the right to use them in all forms, print them, reproduce them on any media, adapt them, translate them, and create derivative works. Pre-existing works owned by Datashield Consulting or a third party that may be included in the results remain the property of their respective owners and are subject to the usage conditions of their owners or licensors. The Client grants Datashield Consulting the right to use the results for commercial and communication purposes during the term of the contract and for two years following its termination. Violation of these provisions may result in the cancellation of any order, without prejudice to any legal action. The Client agrees to display the copyright notice for the services sold, in the form of a written and graphic link. Furthermore, the Client grants the right to use its company name as a reference for the company Datashield Consulting. The Client may switch to another service provider, provided that the provider does not use the products or services implemented. Under no circumstances does this contract transfer any intellectual, moral, or proprietary rights from the Client to Datashield Consulting. Datashield Consulting undertakes to respect the Client's intellectual property rights in accordance with the Intellectual Property Code. The graphic creations, developments, and textual content created by Datashield Consulting remain the property of Datashield Consulting, and Datashield Consulting reserves the right to resell or partially use its creations.
II. In the case of equipment sales, Datashield Consulting reserves the ownership of the products sold until full payment of the price by the Client. Therefore, the products cannot be resold or transformed before this payment. The Client undertakes to insure against all risks associated with the possession of these products until their full payment. The risk of loss and damage will be transferred to the Client upon delivery of the ordered products. The software remains the full property of their authors.
ARTICLE 15 : FORCE MAJEURE
None of the Parties shall be held liable towards the other for non-performance or delays in the performance of an obligation under the Contract, which would be due to the occurrence of a force majeure event or an exempting cause such as: severe weather conditions, epidemics, water damage, fires, transportation or supply chain disruptions, natural disasters, acts of public authorities, issues affecting our suppliers, interruption of electrical or telecommunications networks. In this regard, force majeure refers to any external, unforeseeable, and irresistible event within the meaning of Article 1148 of the Civil Code. In such a case, the obligations arising under the contract will be suspended, provided that the requesting party informs the other party within three working days of its occurrence. If such a case continues beyond a period of one month, the contract may be terminated by registered letter with acknowledgment of receipt, unless otherwise agreed between the Parties.
ARTICLE 16 : SUBCONTRACTING AND EMPLOYEES
I. The Client expressly authorizes Datashield Consulting to use, without prior formalities, partners for all or part of the order execution.
II. Datashield Consulting guarantees that it will only use employees for the execution of the Contract who are: a. contractually bound to Datashield Consulting;
b. who have signed its code of ethics and confidentiality agreement;
c. and who do not have any mentions in bulletin No. 3 of the criminal record.
III. Datashield Consulting shall remain responsible to the Client for the execution of all obligations arising from this contract.
ARTICLE 17 : NON-SOLICITATION
The Client shall refrain from hiring or employing, directly or indirectly, any member of the company or any current or future employee or collaborator of Datashield Consulting, during the entire execution of the contract and for a period of 24 (twenty-four) months from its completion, unless prior written authorization is obtained from the Client and Datashield Consulting.
ARTICLE 18 : LIABILITY AND WARRANTY
In no event shall the liability of Datashield Consulting be sought in case of:
I. Fault, negligence, omission, or failure of the Client or a third party to comply with the given advice.
II. Force majeure, event, or incident beyond the control of Datashield Consulting (hosting interruption, Internet access disruption, website hacking, virus...)
III. Disclosure or unlawful use of the password confidentially provided to the Client.
IV. Indirect damages suffered by the Client (such as loss of turnover or business opportunities). Similarly, Datashield Consulting shall not be held responsible for damages caused by third parties or by the Client's fault. The liability of Datashield Consulting shall also not be sought in the event of data loss by the Client, who must protect themselves by backing up their data.
Datashield Consulting is liable, in accordance with the rules of civil law, for the services provided to the Client. Datashield Consulting undertakes to make every effort to ensure the services to the Client under optimal conditions unless a service interruption is expressly requested by a competent administrative or judicial authority. However, it is subject to an obligation of means under this contract. The products distributed by Datashield Consulting conform to the description provided by the publisher and are guaranteed by the latter. The tools will be used by the Client under their sole control, direction, and responsibility. Therefore, the following are exclusively the Client's responsibility: the implementation of all useful processes and measures to protect their hardware, software, passwords, and guard against all viruses and intrusions; compliance with the technical recommendations provided by the publisher to avoid slowdowns, blockages, data alterations, etc.; the choice of the internet service provider or telecommunication support; errors committed by their personnel in the use of the tools. Datashield Consulting disclaims all liability for the misuse or improper use of the services or products, and for any potential intangible, material, or bodily damages that may result from it. In the event that the liability of Datashield Consulting is established due to proven fault, the Client and Datashield Consulting agree that regardless of the nature, basis, and modalities of the action brought against Datashield Consulting, the total and cumulative amount of damages that Datashield Consulting may be required to pay to the Client is limited, for all causes combined, to the amounts actually received by Datashield Consulting under the Contract or, in case of non-payment by the Client for any reason whatsoever, limited to 20% of the value of the services, a value defined in accordance with the rates specified in the estimate and/or technical and commercial proposal. Datashield Consulting is not liable under the law for the advice and information provided to its Clients as part of its services. Thus, Datashield Consulting cannot be held responsible for any legal proceedings and charges brought against its Client if the latter has not complied with the law in the course of their business operations. The Client may not seek recourse against Datashield Consulting in the event of a dispute. However, Datashield Consulting, as a partner, will do its utmost to keep its Clients informed of major legislative changes affecting their activities.
The Client certifies that the "content" used or provided to Datashield Consulting for use is not illegal and does not in any way violate the rights of third parties. The Client shall indemnify Datashield Consulting in the event of any claim by a third party regarding the use it has made of the services created by Datashield Consulting. Datashield Consulting shall not be held responsible for damages suffered by a user as a result of any modification to the site made by the Client or a user outside the personnel of Datashield Consulting.
ARTICLE 19 : CONFIDENTIALITY
As a result of performing the Service, Datashield Consulting and its auditors will have access to Confidential Information, as defined in this article. In order not to hinder the proper execution of the Service, this access is granted in exchange for a commitment to confidentiality. The Confidential Information includes all information related to the Client's business and activities that Datashield Consulting and its employees may become aware of during the execution of the Service, provided that, due to their nature or the manner in which they are acquired, they can reasonably be considered confidential. Therefore, Datashield Consulting agrees to:
I. Not disclose the Confidential Information. It shall not communicate them orally or in writing, show them, or teach them.
II. Protect the confidentiality of the Confidential Information by taking all necessary measures to prevent unauthorized persons from gaining knowledge of it.
III. Not use the Confidential Information for its personal benefit or to harm the Client.
IV. Promptly notify the Client if it becomes aware of a breach of any of the previous points (Article 19: I., II., and III.).
V. Take the necessary measures to ensure that its auditors comply with the obligations set forth in the previous points (Article 19: I., II., III., and IV.).
The Confidential Information, despite being accessed by Datashield Consulting, remains the exclusive property of the Client.
Datashield Consulting will respect confidentiality in formulating its recommendations and in its interactions with the various stakeholders involved in the Service. It will ensure that it does not disclose Confidential Information to unauthorized persons during its communications.
As a general rule, Datashield Consulting will retain the information resulting from the execution of the Service for at least six months from the date of the closing meeting, ensuring the maintenance of confidentiality. It must then anonymize and decontextualize the data.
However, the Client may refuse this retention (without having to provide a justification) through a formal, explicit, and precise declaration. Datashield Consulting must then destroy the data and provide a certificate of destruction to the Client.
All information exchanged between Datashield Consulting and the Client, or of which they become aware in the preparation and execution of the Contract, regardless of their format, is strictly confidential. Each party undertakes to protect and not disclose them to third parties without the prior written authorization of the other party. The parties agree to comply with the obligations arising from this article during the entire duration of the contract and for 5 years following its termination.
The obligation of confidentiality may be extended for an indefinite period as stipulated in the Contract between the parties.
ARTICLE 20 : COMMERCIAL REFERENCES
The Client expressly authorizes Datashield Consulting to include its name and logo in its commercial references communicated to the public, on any medium, unless expressly notified by the Client.
ARTICLE 21 : NON-EXCLUSIVITY OF THE CONTRACT
Under no circumstances can Datashield Consulting provide exclusive services to a Client for a specific sector. The Client agrees that Datashield Consulting may perform services for another Client in the same sector and/or geographic location.
ARTICLE 22 : PLACE OF INTERVENTION FOR THE ASSIGNMENT
Datashield Consulting may be required to intervene at the Client's premises.
I. The Client undertakes to provide Datashield Consulting with the necessary tools and means for the successful completion of the assignment. In case of dysfunction (compatibility or breakdown of the provided tools), the Client cannot hold Datashield Consulting responsible for the situation.
II. The Client certifies that the consultant will not be exposed to any particular occupational hazards in the course of their assignment. In the event of the contrary, the Client undertakes to immediately inform Datashield Consulting and implement all necessary measures to ensure the consultant's safety.
ARTICLE 23 : DATA PROTECTION AND DATA RETENTION
I. In accordance with the Data Protection Act of January 6, 1978 (Art. 34), the Client has the right to access, modify, correct, and delete information concerning them. For any information, Datashield Consulting is available either by email at the address contact@datashieldconsulting.com (this email address is protected against spam robots) or through any other means available on the Datashield Consulting.com website.
II. The Client is informed that it is their responsibility to comply with the steps, declarations, and authorization requests required by the laws and regulations in force concerning any processing and handling of data through partner software and solutions, particularly as stipulated by the C.N.I.L. (French data protection authority) regarding the processing of personal data.
ARTICLE 24 : MISCELLANEOUS
If any provision of the Contract is declared void or without effect, particularly under a law, regulation, or court decision, it shall be deemed unwritten, but the other provisions of the Contract shall nevertheless remain in force. Any notification made under the Contract must be in writing and delivered by hand, sent by fax, email, or registered mail with acknowledgment of receipt. None of the provisions of the Terms and Conditions shall be interpreted as creating a mandate, subsidiary, employer-employee relationship between the Client and Datashield Consulting, with each party acting independently.
ARTICLE 25 : APPLICABLE LAW AND JURISDICTION
I. Any issue relating to these general conditions and the sales and services they govern, which is not addressed by the contractual provisions, shall be governed by French law. All disputes arising from or in connection with this Contract, including its validity, interpretation, execution, termination, consequences, and effects, shall be brought before the Commercial Court of Lyon, in the absence of an amicable agreement between the parties, regardless of the number of defendants or third-party proceedings.
II. Datashield Consulting confirms that its employees are aware of the legislation regarding personal data, misuse of trust, privacy of private correspondence, medical confidentiality, invasion of privacy, unauthorized access to or fraudulent retention of information systems, and professional secrecy.