ECLEVAR GENERAL TERMS OF DELIVERY
Art.1 – Definitions and applicability
1.1 In these General Terms and Conditions (“Terms and Conditions”), the following are defined as:
– ECLEVAR: ECLEVAR SAS, and all the companies affiliated directly and indirectly with aforementioned company;
– Client: each legal entity with which ECLEVAR negotiates the conclusion of an Agreement and/or concludes an Agreement;
– Agreement: each agreement that is concluded between ECLEVAR and the Client and pursuant to which the following actions may be performed: services provided by ECLEVAR to the Client, or any alteration thereof or addition thereto, as well as all legal acts for the preparation and execution of the agreement;
– Services: all services that are the subject of an Agreement;
1.2 These Terms and Conditions are part of all Agreements and apply to any relevant and prior acts or legal acts by ECLEVAR and the Client. In the event of any conflict the Agreement shall prevail over these Terms and Conditions.
1.3 The applicability of Client’s general terms and conditions, by whatever name, is explicitly rejected by ECLEVAR.
1.4 Deviations of these Terms and Conditions shall only be valid if and in so far as these were explicitly laid down by ECLEVAR in writing.
Art.2 – Conclusion of Agreements
2 .1 Offers or price offers are not binding to ECLEVAR and can only be considered as an invitation to place an order. An Agreement is only concluded if and in so far as ECLEVAR accepts an order of the Client in writing, which also includes by email, by means of its order confirmation or by signing any other document in writing, or in the event ECLEVAR started the performance of the services as laid down in the offer.
2.2 Any further arrangements or alterations thereof that were agreed between ECLEVAR and the Client for the benefit of the execution of the Agreement, shall only apply if and in so far as they were laid down in writing by ECLEVAR.
Art. 3 – Planning
3 .1 The work planning shall take place in consultation of the Client. The actual time will only be reserved after the Agreement is concluded and the planning is laid down in writing. Agreed time limits will be observed by ECLEVAR as much as possible, but are in no event final deadlines.
3.2 The Client will be solely responsible for providing ECLEVAR with timely, correct and complete general, technical, scientific and/or regulatory data and information needed or desirable for the execution of the Agreement.
3.3 The Client shall be available for consultation at the agreed time in respect of the planning and progress of the work.
3.4 Upon exceeding the time limit the Client is not entitled to compensation of damages.
Art. 4 – Prices and payment
4 .1 All rates and expenses quoted in the Agreement, offers, order confirmations or other written documents of ECLEVAR are estimated and do not represent the actual and total price of the Services. Additional charges will be invoiced.
4.2 All rates and expenses quoted in the Agreement, offers, order confirmations or other written documents of ECLEVAR are exclusive of V.A.T. and any other government levies, unless expressly stated otherwise.
4.3 With respect to claims denominated in foreign currency against debtors located outside of FRANCE, ECLEVAR will not be liable for any exchange differences, conversion differences and/or transfer problems.
4.4 Invoices dispatched by ECLEVAR must be paid by the customer within maximum 30 days of the invoice date.
4.5 Yearly price inflation corrections (INSEE RATE) are applicable for all prices.
4.6 In case of ECLEVAR acting as an intermediate for invoicing, 8% administration fee will be added to the actual costs and will be invoiced.
4.7 All payments must be made without any deduction or set-off and without the Client blocking its accounts by attachment or otherwise.
4.8 If the Client fails to pay the outstanding amounts within the term referred to in paragraph 4.4, the Client will be in default by operation of law and without notice from ECLEVAR, being required to pay default interest of 5% per month, or the rate equal to the statutory (commercial) interest if the latter is higher, on the entire amount outstanding.
4.9 In the event of debt collection all judicial and extra- judicial costs incurred by ECLEVAR will be at the Client’s expense. This amount will in no event be lower than 20% of the total amount due and payable.
4.10 ECLEVAR, at its sole discretion, determines against which outstanding amount the payment by the Client will be applied first.
Art. 5 – Force Majeure ECLEVAR
5 .1 If ECLEVAR is unable to comply with its obligations towards the Client within the agreed time limits due to force majeure, the time limits will be extended. Force majeure includes at least any circumstance that is independent on the will of ECLEVAR, including but not limited to, natural disasters, shortage of materials, company and/or equipment breakdowns, strikes, measures taken by a government, problems with power supply, and faults by third parties engaged by ECLEVAR.
5.2 If the force majeure situation has lasted over three months, or if it is established that it will last over two months, both parties will be entitled to terminate the Agreement with regard to the Services that are not performed yet. In that case, the Client is not entitled to compensation of damages.
Art. 6 – Copyright
All intellectual property rights, including copyrights, to the reports and other written documents prepared by ECLEVAR and the documents resulting from its work, belong to ECLEVAR and shall only be transferred to the Client after it has fully paid everything it owes or will owe to ECLEVAR, for whatever reason. Multiplication will be allowed for internal use. In addition, the first paragraph does not apply to phrases containing facts of general knowledge. The Client acknowledges that paragraphs or parts of reports and/or other written documents prepared by ECLEVAR constitute a coherent whole. The Client is not allowed to publish and/or disclose and/or make public parts of the reports and other written documents prepared by ECLEVAR without written consent of ECLEVAR. This article also applies in the event the intellectual property rights are transferred to the Client under the conditions of article 6.1.
In the event of breach of the ban set out in this Article 6, the Client will forfeit a penalty of 100% of the total price as mentioned in the Agreement (including variations in the amount of work) payable to ECLEVAR for each breach, without prejudice to ECLEVAR ‘s right to claim payment of the damage incurred or to invoke any other right(s).
Art. 7 – Complaints
7.1 The Client is obligated to immediately check the rendered Services and to determine as far as possible whether they are in conformity with the Agreement. In the event the Client believes the rendered Services do not comply with the Agreement, the Client shall inform ECLEVAR as soon as possible, and in all instances within eight days of rendering of the Services, or of the time when it was reasonably possible to determine non-conformity, at the risk of forfeiting all relevant claims.
Art. 8 – Liability and Indemnity
8 .1 ECLEVAR will perform its Services to its best knowledge but does not take on an obligation of result. For the avoidance of doubt the Client is solely responsible for designing, development, classification, registration and marketing of its products.
8.2 ECLEVAR is not liable for any indirect damages suffered either by the Client or third parties.
8.3 ECLEVAR’s liability or any other compensation with respect to the Client and/or third parties is limited to the sum or the sums that will be paid out by ECLEVAR’s liability insurance.
8.4 In the event ECLEVAR’s liability insurer does not pay out under the insurance, ECLEVAR’s liability for damages or any other compensation with respect to the Client and/or third parties is in any event limited to the invoice value of the Services that caused damage, with a maximum of EUR 10,000 or the fee so invoiced by ECLEVAR to its Client. This limitation is unconditionally and irrevocably accepted by the Client which waives any actions or legal recourses against ECLEVAR and its representatives.
8.5 The exclusions and limitations as referred to in the previous paragraphs of this article will lapse if and in so far as the damage is the consequence of intention or wilful recklessness by ECLEVAR or its company management.
8.6 The Client will indemnify ECLEVAR for any claims by third parties, that are directly or indirectly related to the Services and it will compensate any damages to ECLEVAR that ECLEVAR may suffer as a consequence of such claims.
Art. 9 – Non solicitation
9.1 During the term of the Agreement and during twenty four (24) months thereafter the Client shall not employ or have work for him or for third parties the staff of ECLEVAR, on penalty of a direct fine of € 20,000. per violation, plus an amount of € 1,000. – for each day that the violation of this article continues, without prejudice to ECLEVAR ‘s right to claim payment of the damage incurred or to invoke any other right(s) this including liquidated damages.
Art. 10 – Default and Termination
10 .1 If the Client does not, timely or properly, comply with its obligations that ensue from the Agreement, ECLEVAR is entitled to suspend the Agreement immediately, without a notice of default or judicial intervention being required, or to terminate or suspend it partly or fully by means of a written notification, without ECLEVAR being obliged to compensate any damages, all of this without prejudice to any of its other rights.
10.2 In case the Client :- is declared bankrupt, or requests its own bankruptcy or moratorium;- goes on strike or proceeds to transfer its company or part thereof, including the transfer of the company into a newly to be founded or existing company, or if it proceeds to change the purpose of its company; ECLEVAR shall be entitled to fully or partly terminate or suspend the Agreement with the Client immediately, without a notice of default or judicial intervention being required, by means of a written notification, all of this without prejudice to any of its other rights.
10.3 Notwithstanding the provisions above in this article, parties agree that if the parties’ opinions differ about the Services rendered by ECLEVAR, or the collaboration between parties in general and parties believe that further collaboration would not lead to the desired outcome as formulated in writing beforehand, both parties shall be entitled to give notice to terminate the Agreement at the end of the month, subject to a one-month notice period. lf Client gives notice to terminate the contract subject to the above, it shall nevertheless undertake to refund the costs incurred and yet to incur by ECLEVAR in the context of the terminated.
Art. 11 – Applicable Law and Jurisdiction
11.1 French law shall apply exclusively to these Terms and Conditions, as well as to the Agreement. The General Terms and Conditions and the Agreement express and describe French legal concepts in English and not in their original terms. Consequently all words, terms and expressions used herein are construed and interpreted in accordance with French law.
11.2 In the event of any dispute whatsoever (judicial or not), which cannot be settled amicably by the parties, the dispute will be brought to the competence of the commercial court of PARIS FRANCE.