General Terms and Conditions for the Services
The present General Terms and Conditions of Sale (hereinafter referred to as " CGV ") define the contractual relationship between the buyer (hereinafter referred to as " The Customer ") on the one hand, and the seller (hereinafter referred to as " ESOKIA WEB AGENCY Ltd " or " The Service Provider "), a company incorporated under Mauritian law, whose registered office is located at ORBIS COURT, 132 rue Saint Jean, Quatre Bornes, Mauritius, registered with the Trade and Companies Registry of Port-Louis under number C08081042.
Buyer and Seller may also be referred to hereinafter jointly or individually as "The Parties" or "The Party".
In the default of a Service Contract between ESOKIA WEB AGENCY Ltd and its Client, the GCVs described below apply by operation of law.
These General Terms and Conditions of Sale may be subject to general or specific modifications, mentioned in writing, of course before the conclusion of any transaction between the Service Provider and its Client.
Article 1: Purpose
The purpose of this GCV is to define the technical, legal and financial conditions allowing the Client to subscribe to a Service from ESOKIA WEB AGENCY Ltd.
The present Terms and Conditions of Service are mandatory and apply to the Client for any Service agreed with ESOKIA WEB AGENCY Ltd.
Article 2: Application
Any request or order for the Services made by a Client must, prior to its execution and delivery by ESOKIA WEB AGENCY Ltd, be the subject of either a quotation or a commercial proposal to be provided to the client. The quotation (or commercial proposal) is annexed to these CGV and is an integral part of these CGV.
Following receipt and acceptance by the Client of a quotation or proposal, any request or order for the Provision of Services implies the Client's full and unreserved acceptance of this GCV, which he declares to have read, understood and accepted. No particular or general purchasing conditions may unless expressly agreed in writing by both parties, take precedence over these CGV.
Article 3: Quotation / Commercial Proposal and Order
In the absence of a specific mention, a quotation or commercial proposal remains valid for 1 month from the date of publication. In the absence of acceptance and after this period, the customer must request a reprint.
Also in the absence of any particular mention, in order for an order to become firm, definitive and accepted by ESOKIA WEB AGENCY, the Client must signify its agreement to any quote submitted by ESOKIA WEB AGENCY.
This duly completed quotation (or proposal) must then be returned to the Service Provider electronically (digital document or scanned PDF).
Failing receipt of the duly completed quote or proposal, ESOKIA WEB AGENCY Ltd reserves the right not to begin the Service in question.
ESOKIA WEB AGENCY Ltd reserves the right to refuse any non-contractualized request or whose intentions would be contrary to honesty or morality (discrimination, pornography, racism, incitement to violence...).
Article 4: Place and Duration
Depending on its nature, the Provision of Services may be performed in whole or in part, either on the premises of ESOKIA WEB AGENCY Ltd and its subsidiaries or on the premises of the Client.
Unless specifically agreed otherwise, the Provision of Services is carried out during standard office hours from 9 am to 6 pm.
The deadlines for the execution of Services can be stipulated on the quotation or the commercial proposal. They may be the subject of an addendum which must be accepted and signed by the Client.
ESOKIA WEB AGENCY Ltd undertakes to offer the most suitable deadlines at the request of the Customer, within the limits of its availability.
The delivery is made on the date indicated on the quotation or proposal unless otherwise agreed or delay by the Client to confirm his order, which may result in an exceeding of deadlines.
The delivery times are given only as an indication, their overrun may not give rise, to the benefit of the Customer, to an allocation of damages, penalties for delay or cancellation of the order.
The Client agrees to provide ESOKIA WEB AGENCY Ltd with all the elements necessary for the execution of the defined Service. Any delay or omission on its part may result either in a revision of the delivery date or cancellation of the order.
Article 5: Price
The rates applied are those in force on the day the quote or commercial proposal is issued for services provided within the framework of standard working hours. Prices are expressed either in Euros (EUR), Mauritian Rupees (MUR) or in American Dollars (USD). Prices are exclusive of taxes. The taxes in force are to be paid by the customer. Unless expressly stipulated otherwise, our prices are exclusive of postage and travel expenses, meals and additional costs of typing, reprography, etc.
Expenses incurred by the Service Provider: travel, accommodation, meals and ancillary costs of typing, reprography, etc., necessary for the performance of the Service, will be invoiced to the client on a statement of expenses.
In general, rates are subject to revision on January 1st of each year. However, ESOKIA WEB AGENCY Ltd grants the right to change its rates at any time, it being understood that the prices offered to the Client before a rate change will remain those invoiced to the Client.
Article 6: Withdrawal of order
A right of withdrawal will be accepted within seven working days of the date of the signed quotation, proposal or contract, only if the performance of the Service is scheduled to begin after this seven-day period. The Client will then not be charged any fees. However, if a deposit has been paid, it will not be refunded.
Article 7: Payment, penalties, recovery
In the absence of any specific mention in the quotation or commercial proposal, the global payment of the lump sum for the Service shall be made under the conditions detailed in the quotation or commercial proposal.
For each payment, ESOKIA WEB AGENCY Ltd will issue an invoice to the Client in advance by electronic means (online or by email) or by post or telegraphic means.
In the event of payment by international wire transfer, in particular, via the SWIFT banking interface, it is understood that all bank charges incurred shall be borne by the Customer. The Customer must therefore explicitly notify his bank before the transfer is made.
In case of late payment of an invoice due and unless otherwise agreed between the Parties, the following measures will be applied by right by ESOKIA WEB AGENCY Ltd without any notice of default being necessary:
- The immediate payment of the remaining amount due;
- The calculation and payment of late payment penalties calculated in the form of interest equivalent to 3 times the legal interest rate (in force at the date of invoicing of the sum due);
- The payment of a fixed recovery indemnity of 50 €;
- The suspension of the execution of other possible current and future contracts concluded with the client.
Article 8: Warranty and Customer Service
In the absence of any mention on the initial documents (estimate, contract, proposal), each Service, of more than 2500 € HT completed includes a follow-up of possible operating problems detected by the Client or the Service Provider. This is carried out during a warranty period of 60 days from the delivery of the Service.
In the context of a website whose content maintenance is carried out by the Client, only the files produced by the Service Provider are guaranteed, as well as the initial structure of the screens and database.
Article 9: Duty to cooperate
The Client shall make available to the Service Provider all information and business contacts that may contribute to the proper fulfilment of the purpose of the Service. As well as all source elements or content necessary for the performance of the Service.
Any delay or omission on its part may result in either a revision of the delivery date or cancellation of the order.
Article 10: Obligation of the Service Provider
ESOKIA WEB AGENCY Ltd undertakes, as an obligation of means, to perform the Provision of Services with all the care in use in its profession and to use the rules of the art of the moment.
ESOKIA WEB AGENCY Ltd will use all necessary means at its disposal to take care and preserve the computer files and other documents that will be entrusted to it by the Client for the performance of the Service ordered.
Article 11: Performance & Liability
Given the risks of damage or deterioration incurred by digital information media, it is up to the Client to protect itself by any means at its convenience, which consequently relieves ESOKIA WEB AGENCY Ltd of any liability.
More specifically, the Client waives the right to seek the liability of the Service Provider in case of damage to digital files or any document delivered or entrusted to it in the context of the collaboration for the realization of the Service. The Service Provider disclaims its liability for any material damage that may affect the Client's buildings, installations, equipment or furniture.
Upon delivery of the deliverables by ESOKIA WEB AGENCY Ltd, the Client will be responsible for the use, exploitation and distribution of the content presented therein. The Client hereby releases ESOKIA WEB AGENCY Ltd from any liability and indemnifies ESOKIA WEB AGENCY Ltd against any claims that may be brought against it, whether as a result of this or as a result of any loss of profits or commercial disruption.
In the event that ESOKIA WEB AGENCY is condemned for any reason whatsoever and/or if it is recognized to the benefit of the Client a right to compensation for direct damages suffered as a result of ESOKIA WEB AGENCY's faults in the execution of the Services entrusted to it, the Client shall be entitled to obtain compensation for its loss up to the limit of the sums received by the Service Provider for the Service in question during the 12 months preceding the event giving rise to the loss, regardless of the legal basis of the claim and the procedure used to bring it to a successful conclusion.
Article 12: Duty of confidentiality
ESOKIA WEB AGENCY Ltd undertakes to strictly respect the confidentiality of all information, documents, data or concepts of which it may become aware before, during or after the performance of its Services, as well as the content of the work ordered and carried out.
For the application of the present clause, the Service Provider is responsible for its employees as well as for itself. The Service Provider, however, shall not be liable for any disclosure if the items disclosed were in the public domain on the date of disclosure, or if it was already aware of them prior to the date of signature of this contract, or if it obtained them from third parties by legitimate means.
ESOKIA WEB AGENCY Ltd cannot be held liable for any interception or misappropriation of information during the transfer of data, in particular via the Internet. Consequently, it is the Client's responsibility, when ordering, to inform ESOKIA WEB AGENCY Ltd of the means of transfer that he wishes to see implemented in order to guarantee the confidentiality of any information of a sensitive nature.
ESOKIA WEB AGENCY Ltd reserves the right to use the Client's name and logo as well as the description of the Service provided, as a reference and only for this purpose.
However, if the Client does not wish to be quoted as a reference, the Client may make a written request to ESOKIA WEB AGENCY Ltd who will respect this request.
Article 13: Intellectual Property
Any Service involving the creation, design, scenario writing, mediatization, development of an educational, graphic or programmatic nature, is subject to the Intellectual Property Code and to copyright in particular.
Concerning the results of the sold Service, ESOKIA WEB AGENCY Ltd retains full ownership until full payment of the balance invoiced to its Client.
When the quotation or contract or proposal does not mention it, and in the absence of negotiations with the client, each production remains the Intellectual Property of ESOKIA WEB AGENCY Ltd.
The reproduction and representation rights (economic rights) are automatically transferred to the client (unless otherwise stated) with the obligation to keep, if it has been affixed, the mention "Produced by ESOKIA WEB AGENCY" and, in the case of a digital edition, the hyperlink on "ESOKIA WEB AGENCY" referring to the agency's website: https://esokia.com.
The Client remains the sole owner of the source elements or content necessary for the performance of the Service and provided for this purpose to ESOKIA WEB AGENCY Ltd.
In addition, the Client represents and warrants that it owns or holds the necessary licenses, rights, consents and permissions to use and authorizes ESOKIA WEB AGENCY Ltd to use all copyright and other proprietary rights in any source material or content provided for the performance.
In other words, ESOKIA WEB AGENCY Ltd undertakes not to assert any ownership rights over any source material or content provided by its Client for the performance of the Service.
Article 14: Force Majeure
The responsibility of ESOKIA WEB AGENCY Ltd will not be held liable if the non-execution or delay in the execution of one of its obligations described in these CGV, results from a case of Force Majeure. As such, Force Majeure means any serious and destabilizing event for the execution of the Service, occurring in an unforeseeable, irresistible and external to ESOKIA WEB AGENCY Ltd.
In case of Force Majeure, ESOKIA WEB AGENCY Ltd. will inform its Client as soon as possible in writing, email, or fax. The other party will have ten days to ascertain the Force Majeure.
The delivery time will be automatically postponed according to the duration of the Force Majeure.
Article 15: Outsourcing
Some of the services or tasks required to perform the Service may not be performed directly by ESOKIA WEB AGENCY Ltd but may be performed by one or more Third Party Service Providers with whom ESOKIA WEB AGENCY Ltd will work to cover additional skill requirements. This will be done on a subcontracting basis, which is acknowledged and accepted by the client.
Article 16: Claim
The Client agrees that, regardless of the grounds for its claim, and the procedure followed to implement it, the Service Provider's potential liability for the performance of its obligations under these GTC shall be limited to an amount not exceeding the total sum actually paid by the Client for the services or tasks provided by the Service Provider.
Article 17: Termination
In the event that either of the Parties considers that the mission is no longer being carried out in accordance with the initial conditions, they will agree to meet in order to examine the possibilities of adapting this GCV or, failing that, the contract established between the Parties.
In the event of termination by the Client of an order in progress, whatever the cause, the Client undertakes to pay for the entire service already performed. The cancellation must be notified to the Service Provider by registered letter with acknowledgement of receipt. Cancellation will then take place at the end of a period of 15 days following the Client's notification.
Consequently, the Service performed in whole or in part by ESOKIA WEB AGENCY Ltd and for which the Client has exercised its right of termination, becomes the property of ESOKIA WEB AGENCY Ltd, and is subject to applicable intellectual property law.
Article 18: Obligation of non-solicitation of personnel
During the term of the Contract and during the 12 months following its expiry, the fact that either of the Parties, without the prior agreement of the other Party, directly or indirectly solicit or causes to be solicited, any employee of the latter, shall give rise to the payment without delay, by the Party in question, of an indemnity equal to the last twelve (12) months of gross remuneration of the employee concerned, even if the initial solicitation is made by the said employee and without prejudice to any additional damages that may be due.
Article 19: Advertising
Unless prior, express and written refusal of the Client, ESOKIA WEB AGENCY may report to third parties its relations with the Client under this Agreement.
Similarly, this Contract and the special conditions contained herein are deemed confidential and as such, may not be published or communicated to third parties by the Service Provider.
Unless prior written refusal by the Client, ESOKIA WEB AGENCY LTD may also use and reproduce the Client's names and logos and any other distinctive signs belonging to the Client, in particular as a reference for the purposes of its commercial advertising to third parties.
Article 20: Law and original text
This GTC are governed by French law. The French text of these CGV is authentic as the original text.
Article 21: Conciliation / Mediation and Arbitration
Prior to this, the Parties undertake to settle amicably any dispute, litigation or contestation arising from the contractual relationship entered into. In the absence of agreement, disputes, controversies or claims arising out of or relating to this GTC, including the validity, nullity, possible breaches of these contractual conditions or, if applicable, the termination of the Contract, shall be submitted to the Rules of Conciliation and Arbitration of the International Chamber of Commerce without any recourse to the ordinary courts, by one or more arbitrators appointed in accordance with these rules and whose award shall be binding. The arbitral tribunal shall be the judge of its own competence and of the validity of the arbitration agreement.
This online version of the ESOKIA WEB AGENCY Ltd. Terms and Conditions prevail over any other printable version. As these online Terms and Conditions may be modified at any time, the applicable version is the one in force at the date of signature of a quotation by a Client.
Last updated on 01/01/2020 in Paris, France.
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