- GENERAL TERMS AND CONDITIONS OF SALE
- These General Terms and Conditions of Sale are up to date as of June 27, 2022.
– The Parties
The term ”Provider” refers to the BEBJBROS company, a simplified joint stock company with a capital of 1,000 Euros, registered in the Commercial and Companies Register of Paris under the number RCS 878 069 657 00012, and whose registered office is located 11, sente des Carrelets, 33300, Bordeaux, France.
The Provider is a company specialized in traffic Acquisition.
The term “Customer” means any legal or natural person that has requested the services of the Provider.
The term “Third Party” means any legal or natural person outside the company.
The purpose of these General Terms and Conditions is to define the rights and obligations of the Parties for the provision of services by the Provider to the Customer in the course of his business.
These General Terms and Conditions of Sale (hereinafter referred to as the “GTC”) apply to any agreement concluded between the Provider and the Customer for the provision of services (the “Services”) as defined in the quotation validated by the Customer.
The Services may be provided either remotely or at the Customer’s premises, at the discretion of the Provider and the Customer.
The GTC shall be systematically sent or given to each Customer prior to the placing of any order (the “Order”). Consequently, the placing of an Order implies the Customer’s full and unreserved acceptance of these GTC, to the exclusion of any other documents in the Customer’s possession such as brochures, catalogs or advertising leaflets issued by the Provider, which shall only have an indicative and non-contractual value.
In case of contradiction between the provisions of the quotation and these GTC, the relevant provisions of the quotation shall prevail over the GTC.
These GTC shall govern the entire relationship between the Provider and the Customer. No general terms and conditions of purchase shall prevail or be enforced by the Customer against the Provider and no special terms and conditions communicated by the Customer to the Provider shall prevail over the GTC, unless expressly and in written acceptance by the Provider.
In the absence of express acceptance by the Provider, any reservation concerning the GTC, put forward by the Customer, will therefore be unenforceable against the Provider, regardless of when it may have been brought to his attention.
Any provisions derogating from these GTC shall be subject to the express agreement of the Parties, confirmed in the Orders placed by the Provider or any other document evidencing the agreement of both Parties.
The fact that the Provider does not, at any time, invoke any term of these GTC, shall not be construed as a waiver of any subsequent invocation on such terms and conditions.
The Provider reserves the right to modify these GTC, the Services and the prices at any time and without notice. Such changes shall not affect any Orders in progress.
The GTC apply only to professionals and not to consumers. As such, the Customer acknowledges that he is a professional, in accordance with the provisions of the applicable Consumer Code.
“Order(s)” means the order(s) for the Services issued by an authorized representative of the Customer based on the Provider’s quotation.
“Agreement” means the agreement relating to the performance of the Services, formed by these GTC, the Orders and the quotation expressly referring to the GTC duly and expressly signed by both Parties.
“Party(ies)” means individually or collectively the Provider and the Customer.
“Services” means the services provided by the Provider to the Customer as such services are described in the quotation.
– Entering into the Agreement
Unless otherwise agreed in the quotation, the Agreement shall be deemed to have been entered into and shall become effective between the Parties on the date the Provider receives the Customer’s Order, either by email or by post at the Provider’s address.
No change or modification to the Agreement, including but not limited to the characteristics of the Services, shall be considered unless accepted in writing by the Provider.
This provision may not be replaced by a verbal agreement.
In the absence of specific provisions in the quotation, the time limits for the performance of the Services are communicated to the Customer as an indication. The time limits for performance of the Services shall in no way be guaranteed by the Provider, nor shall they give rise to any liability on the part of the Provider, nor shall they give rise to any obligation to pay any compensation or penalty for delay, nor shall they justify cancellation of the relevant Order.
– Obligations of the Parties
n general, the Customer and the Provider undertake to cooperate actively to ensure the proper performance of the Agreement. Each of the Parties agrees to communicate any difficulties of which it may become aware as the project progresses, to enable the other Party to make the necessary decisions.
The Customer undertakes to provide accurate and sincere information and also undertakes to notify the Provider of any change in the information, data, documentation provided.
The Customer shall be solely responsible for any malfunctions that may result from incorrect information. The Customer must maintain a valid e-mail address and postal address.
- Obligations of the Customer
The Customer expressly declares that he has received from the Provider all the information and advice necessary for the performance of the Services and waives any liability of the Provider in this respect.
To enable the Provider to perform his mission, the Customer undertakes to:
Cooperate closely with the Provider and provide all information, documentation, services, and all means useful for the realization of the Services and undertakes to make available to the Provider all elements allowing to satisfy his obligation, including the staff dedicated to the good realization of the Services.
Establish detailed specifications that will not be modified, except by agreement of the Parties, once approved by the Provider. If necessary, the Provider may be involved in the development of the specifications, jointly with the Customer. In the event that changes involve a substantial reworking of the initial specifications, such changes shall be invoiced in addition to the initial quotation.
Provide the Provider with the quotation (dated, signed and stamped).
Provide all documentary, graphic and textual elements necessary for the proper execution of the Agreement (in particular in the right formats according to the targeted media), the Customer undertakes to provide all legal information to be added to the documents and assumes responsibility for providing the content of the documents he edits.
Have the necessary rights on the elements provided above.
Actively collaborate to the success of the project by providing the Provider within the previously defined deadlines with all the information and documents necessary for the good understanding of the needs and the good execution of the Services.
Strictly comply with the technical recommendations and artistic suggestions made by the Provider.
Guarantee the Provider against any action that could be brought against him because of the character of the data or information (texts, images, sounds) that would have been provided or chosen by the Customer.
Pay the amounts due to the Provider, within the time limits specified in the quotation and in these GTC.
Inform the Provider of any competition with other providers.
Ensure that all necessary means are available to allow the Provider to perform the Services on his premises and/or remotely.
Prior to each intervention of the Provider, the Customer undertakes to perform all necessary backup procedures to protect and safeguard his data, programs and computer files.
Finally, the Customer is solely responsible for the laws and regulations applicable to the Services, in particular regarding the protection of intellectual property rights, legal notices, personal data protection, protection of minors (if applicable) and consumer law (if applicable).
- b) Obligations of the Provider
In the context of these GTC and the provision of the Services, the Provider undertakes to use all necessary means and to do everything possible to carry out his mission in accordance with the rules of the trade. This obligation shall not constitute an obligation of result, the Provider providing the Services only as part of an obligation of means.
The Provider guarantees that the creations are legally available and are not encumbered by third party rights for the uses provided for under the Agreement.
The Provider undertakes to inform the Customer on a regular basis of the progress of the project, in particular through validations submitted to the Customer in the reverse schedule as provided in the quote.
– Terms of performance of the Services and delivery of deliverables
The Customer undertakes to provide the Provider with all the documents necessary for the performance of the Services entrusted to the Provider in a usable form.
Any subsequent modification or additional request by the Customer will be subject to additional billing.
As the performance of the Services entrusted to the Provider is directly dependent on the Customer’s compliance with his own obligations, the Parties expressly acknowledge that the delivery deadlines specified in the quotation are given as an indication only and without guarantee.
Any delay in the delivery time shall not give rise to the payment of damages, nor shall it entitle the Customer to terminate the Agreement or to refuse delivery of the Services.
The Provider’s pricing terms for the provision of the Services are set forth in the Provider’s quotation.
Prices are given as an indication and are therefore subject to change. The price invoiced is the one provided in the Order validated by the Provider.
The prices of the Services are expressed and payable in Euros and are exclusive of value added tax and any other tax, the Customer being responsible for the payment of such taxes.
The prices of the Services do not include any travel or accommodation expenses that may be invoiced in addition by the Provider to the Customer according to the terms and conditions indicated in the quote.
– Terms of payment
Acceptance of the quotation and the resulting Customer Order must be accompanied by payment of a deposit as specified in the quotation.
Payment of the deposit will be a condition for the implementation of the Services. Payment of the deposit may be made by bank transfer or direct debit payable to the Provider.
Payment of the balance of the Services must be made within thirty (30) days from the date of the invoice issued by the Provider and may be made by bank transfer or direct debit payable to the Provider.
No discount is provided for early payment.
– Late payment fees
In case of non-payment on the due date, any sum due will incur late payment fees. These fees will be applied from the day following the due date indicated on the invoice until the day of the effective and complete payment of the sum. The rate of late payment fees is set at three times the legal interest rate in force.
These late payment fees are payable by rights and without any reminder by the Provider being necessary.
The Customer shall also be liable to pay a minimum collection fee of forty (40) euros of the amounts owed by to the Provider.
Finally, in the event of late payment, the Provider reserves the right to suspend or postpone the performance of the Services provided for in the Order for which payment is late.
– Additional costs
The various elements that may be necessary for the realization of the Provider’s Services and that are not included in his offers are not included in the prices indicated. For example, the purchase costs of emailing base, costs related to technical setup.
The following are to be invoiced in addition: modifications requested by the Customer during the course of the project, if they involve a reworking of the project.
The Provider may terminate the Services provided to the Customer in the event of a breach by the Customer of his obligations under the Agreement that is not remedied within fifteen (15) days of the Provider’s notification of such breach by registered letter with notice of receipt, regardless of the Provider’s ability to claim damages.
The Provider may also terminate the Agreement in the event of non-payment of the invoice(s) outstanding by the Customer.
If the Agreement is terminated by the Customer prior to its expiration, the Customer undertakes to settle and pay the amounts relating to the current schedule, the work performed or in progress, and the additional services provided. The files and source data created and used by the Provider shall not be claimed by the Customer without a financial contribution. The deposit already paid shall be retained by the Provider as compensation for the work undertaken.
– Intellectual Property Rights
The software, data, documentation, processes, methodologies, technologies and documents belonging to the Provider (hereinafter referred to as Intellectual Property Rights) used in the implementation of the Services remain the exclusive property of the Provider.
The Provider grants to the Customer, where applicable and to the extent strictly necessary for the performance of the Services, on a personal, non-exclusive and non-transferable basis, the right to use such Intellectual Property Rights for the duration of the performance of the Services.
The works created by the Provider for the Customer, in the context of the performance of the Agreement, shall remain the full and exclusive property of the Provider until the invoices issued by the Provider are fully paid by the Customer.
Upon receipt of invoices by the Provider, the latter assigns to the Customer all intellectual property rights on the works created specifically and at the request of the Customer, in the context of the performance of the Agreement, for their term of protection and worldwide.
In particular, the Provider assigns to the Customer the following rights:
The right of reproduction includes, but is not limited to:
the right to reproduce and/or have the works created reproduced in unlimited numbers, by any process and on any current or future support, and in particular graphic, magnetic, digital or electronic (interactive or not);
the right to put into circulation and to operate the created works, whether commercially or not, the reproductions thus made, in unlimited number, free of charge or against payment, whatever the destination.
The right of representation includes in particular, and in a non exhaustive way:
the right to broadcast and communicate to any public the elements, supports, components of the created works, by any process of representation known or unknown to this day, for any use whatsoever;
the broadcasting of the created works by any means, in particular by hertzian way, cable-satellite as well as by any network, and more generally by any means of transmission of data, digitized or not.
As part of the provision of the Services and as necessary, the Customer also grants the Provider a personal, free, non-exclusive and non-transferable right to use his software, data and documents for the duration of the provision of the Services.
The Customer undertakes to obtain from any third party, if necessary, the right to grant to the Provider the right to use the software, data and equipment belonging to such third party for the purpose of providing the Services.
Brands and company names
Any use by the Customer of the corporate names, brands and distinctive signs belonging to the Provider is strictly prohibited unless the Provider has given his express prior consent. In case of the Provider’s express prior consent, the Provider grants the Customer a strictly personal, non-exclusive and non-transferable right to use the Provider’s company names, brands and distinctive signs throughout the world and for the entire duration of the Agreement.
As for the Provider, he shall be entitled to use the Customer’s company name/brand in the course of his business for marketing purposes.
The Provider also reserves the right to mention the work done for the Customer on his external communication and advertising documents (website, portfolio, etc.) and during commercial prospecting.
The Provider reserves the right to include in the realization of the Services a commercial reference clearly indicating his contribution, such as the formula “service carried out by captaintraffic” accompanied, when the medium allows it, by a hypertext link pointing to the Provider’s Internet site and any communication medium.
Warranty of eviction
The Provider shall indemnify the Customer against any action, claim, demand or opposition from any person claiming an intellectual property right infringed by the provision of the Services, provided that the Customer shall inform the Provider, as soon as he becomes aware of any such claim, demand or proceeding made or brought on such grounds, whether in or out of court. The Customer undertakes to provide the Provider with all documents and information in his possession as well as any assistance required that may be necessary for his defense.
In the event of a proven infringement of a third party’s rights, the Provider may, at his discretion:
obtain any license or authorization to allow the Customer to continue to use the Services;
provide an alternative solution that allows the Customer to use the Services in accordance with the Order;
if neither of these options is possible, refund to Customer the amounts he paid for the Services, less any amounts already paid by the Customer for the period of actual use of the Services.
The Provider shall have no obligation to indemnify or otherwise satisfy any claim of infringement which arises from (a) a use of the Services other than in accordance with the Agreement, (b) a combination of the Services with other services or materials not provided by the Provider.
With respect to any software, data or documents used by the Provider in the course of providing the Services, which the Customer has acquired the rights to use from third parties or which the Customer owns, the Customer shall indemnify the Provider against any consequences or consequential damages that the Provider may suffer as a result of the use of such software, data or documents against any action by a person claiming an intellectual property right or relying on a claim of unfair competition and/or parasitism in respect of such software, data or documents.
The Provider warrants that the Services are provided in substantial conformity with the Order.
Unless otherwise provided by law, all other warranties, express or implied, are excluded.
The Provider shall not be liable for any warranty, in particular if the Customer has modified or arranged for the modification of the Services or has used services other than the Services provided by the Provider, without the Provider’s prior written consent or if the Customer or third parties have interfered with the elements of the Services without the Provider’s prior consent.
The Provider’s liability is limited to direct damages resulting from a defect in the Services or a breach of the Agreement, even if the defect was foreseeable at the time of the Order.
In no event shall the Provider be liable for any indirect, incidental or special damages as defined by the case law of the French courts, including the cost of procurement of substitute services, loss of profits, loss of data or downtime, whether such liability is in contract or tort and whether or not arising out of the use or performance of the Services, even if the Provider has advised the Customer of the possibility of such damages.
In the event of any failure by the Provider to perform his obligations (failure to perform or improper performance), the Customer shall notify the Provider within eight (8) business days after the failure is discovered by registered letter with notice of receipt. If the Customer fails to do so, the default shall not be enforceable against the Provider.
In the event that the Customer has signed an acceptance report for the Services and/or the artwork of the creation(s) or has validated the acceptance of the Services and/or the artwork, by any means and in particular by using the Services and/or the artwork, the Provider shall be deemed to have performed his obligations in accordance with the Agreement. The Customer shall then be deemed to have irrevocably waived all claims in this respect.
In addition, the Provider shall not be liable for non-performance of the Agreement in the event of force majeure as defined in Article 15, and in the event of damage caused by a third party or attributable to misuse or non-conforming use by the Customer of the Services, in violation of the Provider’s instructions or the rules of the trade.
Except for personal injury or death, and except in the case of gross negligence or deliberate tortious intent causing proven direct damage or in the case of a breach of an essential obligation of the Agreement which renders the Agreement meaningless, the Customer acknowledges that the Provider’s liability is limited to the amount paid for the Services in question.
– Force Majeure
The Parties shall not be held liable or in default of their contractual obligations when the failure to perform their respective obligations is due to force majeure as defined by the case law of the French courts. The Agreement between the parties shall be suspended until the extinction of the causes having generated the force majeure. Force majeure takes into account irresistible facts or circumstances, external to the parties, unforeseeable and independent of the will of the parties, despite all reasonably possible efforts to prevent them.
The Party affected by an event of force majeure shall notify the other Party within five (5) working days of the date on which it becomes aware of the event. The two Parties shall then agree on the conditions under which the performance of the Agreement shall be continued.
– Concealed work
The Provider declares that he is registered with the Commercial and Companies Register and with the URSSAF (French Social Security Contribution Collection Office) and that his registrations expressly cover all his activities for the performance of the Services defined in the quotation and/or the Order.
In compliance with Articles L 8221-1 et seq. of the French Labor Code and in accordance with Article D 8222-5 of the same code, the Provider undertakes to provide the Customer with the following documents upon conclusion of the Agreement and every six months until the end of his performance:
A copy of the tax notice relating to the business tax,
A certificate of incorporation (Kbis) attesting to the registration in the Commercial and Company Register,
A declaration on honor drawn up by the Provider, certifying that the work is carried out by employees regularly employed with regard to articles D.8222-5, D.8222-7 and D.8222-8 of the French Labor Code.
Each of the Parties undertakes to maintain in force, for the entire duration of the Agreement, with a solvent insurance company, an insurance policy guaranteeing damage that may occur to its property and personal belongings, as well as a policy covering its professional liability, so as to cover the financial consequences of bodily injuries, tangible and intangible damages for which it would be liable, caused by any event and which would be the act of its collaborators and/or possible partner companies during the performance of the Agreement.
Each Party undertakes, both on its own behalf and on behalf of its employees and partner companies, to preserve the confidentiality of the confidential information exchanged (the “Confidential Information”). Confidential Information shall mean all information, regardless of its nature, form or media, to which each Party shall have access in the performance of the Agreement, including, without limitation, any means made available by the Provider to the Customer and by the Customer to the Provider, any technical, industrial, financial or commercial data, or any other information and documents relating to the activities of each Party. Confidential Information does not cover documents, data or other information that are:
known to either Party on a non-confidential basis prior to disclosure by the other Party;
has fallen or will fall into the public domain on the day of its disclosure;
legitimately obtained from a third party not bound by a confidentiality obligation;
independently developed by the receiving Party that did not have access to any information of the disclosing Party;
disclosed pursuant to a law or regulation provision.
Each Party undertakes to:
apply to the Confidential Information the same protection measures as those applied to its own confidential information;
communicate the Confidential Information only to its employees and collaborators who need to know it in order to perform the Services;
not disclose, publish or transmit to third parties the Confidential Information, in any form whatsoever, without the prior written consent of the other Party;
use the Confidential Information solely for the purpose of performing the Services.
– Traffic suppliers
Each Party waives, except by prior written agreement, the right to directly or indirectly make offers of employment to any employee of the other Party who has worked on the Services, subject of this Agreement, or to take such employee into its service, under any status whatsoever. This waiver is valid for a period of two (2) years from the end of this Agreement.
– Personal data
In accordance with the provisions of the French Data Protection Act (Loi Informatique et Libertés) no. 78-17 of January 6, 1978, as amended, the Customer is responsible for the processing of personal data within the execution of the Agreement.
The Provider acting in the name and on behalf of the Customer in the processing of personal data provided to him by the Customer, has the status of subcontractor.
As such, the Provider undertakes to take the necessary measures to ensure the protection, security and confidentiality of personal data transmitted to him by the Customer.
– Changes to the GTC – transfer of the Agreement
The Provider may decide to assign or transfer the rights or obligations under this Agreement, provided that the Customer receives the Services under the same conditions.
The Provider reserves the right to modify these GTC and to notify the Customer. If a substantial change in the terms of the GTC is not acceptable to the Customer, the latter shall have fifteen (15) days from the date of the notification by the Provider of the changes to inform the Provider. If the Parties do not agree on the changes, the Parties may terminate the Agreement.
At the end of this fifteen (15) day period, the modifications to the GTC shall be definitively considered as accepted by the Customer.
– Applicable law and competent court
The law of the Contract shall be French law. The Parties expressly agree that the Vienna Convention on the International Sale of Goods dated April 11, 1980 is not applicable to the Agreement.
In the event of a dispute between the Parties, they shall attempt to find an amicable solution to this dispute within thirty days of the notification of the dispute by the Party making the request to the other Party by registered letter with notice of receipt.
In the absence of an amicable solution between the Parties, the courts of the jurisdiction of the Paris Court of Appeal shall be the sole competent courts to hear disputes of any kind or litigation relating to the interpretation or performance of this Agreement, notwithstanding the plurality of defendants, incidental claim or summary procedure or warranty proceedings, unless the Provider prefers to bring the matter before any other competent court.
The Provider reserves the right to not accept an Order from the Customer where the Provider has already encountered payment problems (non-payment or late payment) with the Customer for one or more previous Orders.
The Provider may subcontract all or part of the performance of the Services to subcontractors. In this case, the Provider shall remain liable to the Customer for the performance of the Services.
– General provisions
Prior documents or other agreements
The Agreement replaces any other prior document, written or oral agreement relating to the same subject matter, except for the quotation, the Order and prevails over any contrary provision that may be in documents issued by the Customer.
If any provision of these GTC or its application to any person or circumstance is held invalid, such invalidity shall not affect the remaining provisions or applications of these GTC, which shall remain in full force and effect, separate from the provision held invalid. To this end, the provisions of these GTC are hereby declared to be severable.
Any notification shall be made in writing and shall be either delivered by hand, sent by registered letter with notice of receipt, or made by extrajudicial document to the address indicated in the order.
Language of the Agreement
The Agreement is written in French. A foreign language translation may be provided for information purposes. In case of contradiction, only the French version shall be deemed authentic between the Parties.