Terms of Service Delivery
These General Terms and Conditions of Sale (hereinafter "GTC") define the contractual relationship between the buyer (hereinafter referred to as "The Customer") on the one hand, and on the other hand the seller (hereinafter referred to as "ESOKIA" or "The Service Provider"), a simplified limited company with a sole shareholder (SASU in French) with a capital of €1,000, registered with the Paris Trade and Companies Register under number 879 908 192, whose registered office is located at 38 rue de Berri, 75008 Paris.
Buyer and Seller may also be referred to herein jointly or individually as "The Parties" or "The Party". In the absence of a Service Provision Contract concluded between ESOKIA and its Customer, the GTC described below apply automatically.
These GTC may be subject to general or special 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 these GTC is to define the technical, legal and financial conditions allowing the Customer to subscribe to a Service Provision with ESOKIA.
The provisions of these GTC of Services are mandatory and apply to the Customer during any Service Concluded with ESOKIA.
Article 2: Application
Any request or order for a Service made by a Customer must, prior to its execution and delivery by ESOKIA, be the subject of either a quote or a commercial proposal to be provided to the Customer. The quotation (or commercial proposal) is annexed to these GTC and is an integral part of these GTC.
Following the receipt and acceptance by the Customer of a quote or proposal, any request or order for the Provision of Services implies, the customer's full and unreserved adherence to these GTC, which he declares to have read, understood and accepted, as well as the renunciation of his own general conditions of purchase. No particular or general condition of purchase may, except with the express written agreement of both parties, prevail over these GTC. Any contrary condition will therefore, in the absence of express acceptance, be unenforceable against the Service Provider, regardless of when it may have been brought to its attention.
Article 3: Quote / Commercial proposal and Order
In the absence of any special mention, a quote or a commercial proposal, remains valid for 1 month from its date of publication. In the absence of acceptance and after this period, the quote or commercial proposal will be null and void and a reissue must be requested by the customer.
Always in the absence of any special mention, for an order to have become firm, definitive and accepted by ESOKIA, the Customer must signify his agreement to any quote presented by ESOKIA.
This duly completed quote (or proposal) must then be returned to the Service Provider electronically (document in digital format or scanned/scanned PDF).
In the absence of receipt of the quote or the duly completed proposal, the ESOKIA agency reserves the right not to start the Service in question.
ESOKIA reserves the right to refuse any request that is not included in a contract/agreement or whose intentions are contrary to honesty or morality (discrimination, pornography, racism, incitement to violence, etc.).
Article 4: Place and Duration
Depending on its nature, the Service May be performed in whole or in part, either on the premises of the ESOKIA agency and its subsidiaries, or on the Customer's premises.
Without specific agreement, the Provision of Services is carried out within the framework of standard office hours from 9am to 6pm.
The deadlines for the performance of the Service may be stipulated on the quotation or commercial proposal. They may be the subject of an amendment that must be accepted and signed by the customer.
ESOKIA WEB AGENCY Ltd commits to offer the most suitable deadlines for the Customer's request, to the extent of its availability.
Delivery is made on the date indicated on the quote or proposal, unless otherwise agreed or delay of the Customer to confirm his order, which may result in an overrun of the deadlines.
As delivery times are only indicative, exceeding them may not give rise, for the benefit of the Customer, to the award of damages, penalties for delay or cancellation of the order.
The Customer undertakes to make available to ESOKIA all the elements necessary for the performance of the defined Service. Any delay or omission on his part may result in either a revision of the delivery date or a cancellation of the order.
Article 5: Rates
The rates applied are those in force on the day of the edition of the quote or the commercial proposal for services provided within the framework of standard working hours. Prices are expressed either in Euros (EUR), Mauritian Rupees (MUR) or US Dollars (USD). Prices are exclusive of taxes. The taxes in force are the customer’s responsibility. Unless expressly stipulated otherwise, our prices are exclusive of shipping and travel costs, meals and ancillary costs of typing, reprographic costs, etc.
The costs incurred by the Service Provider include travel, accommodation, meals and ancillary typing, typing and reprographic costs, etc., necessary for the performance of the Service, will be invoiced in addition to the customer on statement of expenses.
In general, the rates can be revised on January 1st of each year. However, ESOKIA grants itself the right to modify its rates at any time, it being understood that the prices offered to the Customer, before a price change, will remain those invoiced to this Customer.
Article 6: Withdrawal of order
A right of withdrawal will be accepted within the limit of seven working days following the date of receipt of the quote, proposal or signed contract, only if it is planned to start performance of the Service after this seven-day period. The Customer will then not be charged any fees. However, if a deposit has been paid, it will not be returned to him.
Article 7: Payment, penalties, recovery
In the absence of any special mention specified in the quotation or commercial proposal, the global payment of the lump sum of the Service will be made under the conditions detailed in the quotation or commercial proposal.
For each payment, ESOKIA will issue an invoice to the Customer beforehand by electronic means (online or by email) or by post or telegraph.
Unless otherwise stated, an invoice issued by ESOKIA must be paid by the Customer upon receipt.
No discount is applicable in case of early settlement.
In case of payment by international transfer in particular by the SWIFT banking interface, it is understood that all bank charges incurred will be borne by the Customer. The latter will therefore have to explicitly notify his bank before the transfer is made.
In the event of late payment of an invoice that has expired and unless previously agreed between the Parties, the following measures will be applied automatically by ESOKIA without any formal notice being necessary:
Article 8: Warranties and After-Sales Services
In the absence of mention on the initial documents (estimate, contract, proposal), each Service completed at a price exceeding €2500 HT includes a follow-up of any operating problems detected by the Customer or the Service Provider. And this, during a warranty period of 60 days from the delivery of the Service.
In the context of a website whose content is maintained by the customer, only the files produced by the Service Provider are guaranteed, as well as the initial structure of the screens and the database.
Article 9: Obligation to collaborate
The customer will keep at the Service Provider’s disposal, all the information and professional contacts that can contribute to the successful realization of the purpose of the Service. This includes all the elements or source content necessary for the performance of the Service.
Any delay or omission on his part may result in either a revision of the delivery date or a cancellation of the order.
Article 10: Obligation of the Service Provider
ESOKIA commits, as an obligation of means, to perform the Service provision with all the care in use in its profession and will do so according to the current rules and good practices.
ESOKIA will implement all the necessary means at its disposal to take care of and preserve the computer files and other documents entrusted to it by the Customer for the performance of the Service ordered.
The Service Provider's staff remains under its hierarchical and disciplinary authority, and the Service Provider alone ensures all its obligations and rights attached to its status as employer and in particular the technical direction of work, the administrative, accounting and social management of its staff. This staff, whatever their assignment, will benefit from all the rights resulting from their employment contract with the Service Provider. He will be subject to the obligations conferred by the relationship of subordination existing because of his employment contract with the Service Provider.
The Service Provider ensures for its staff the responsibility of its affiliation to all social organizations, as well as its full responsibility vis-à-vis the labor legislation. As such, the Service Provider certifies that it has made the declarations required by the social protection bodies and has fulfilled the obligations indicated in Article L. 8221-3 and L. 8221-5 of the Labor Code. Any observation relating to the Service Provider's staff will be addressed directly by the Client to the Service Provider.
For the Services performed on the Customer's premises, the latter undertakes to make available to the Service Provider's stakeholders all the means reasonably necessary for the proper performance of the interventions, and in particular:
Article 11: Execution & Liability
Given the risks of damage or deterioration incurred by the digital information media, it will be up to the Customer to protect himself by any means at his convenience, consequently releasing ESOKIA from any responsibility.
More specifically, the Customer waives the right to seek the Service Provider’s responsibility in the event of damage to digital files or any document that he has delivered or entrusted to him as part of the collaboration for the performance of the Service. The Service Provider disclaims its liability for material damage that may affect the customer's buildings, installations, equipment and furniture.
From the delivery of the deliverables by ESOKIA, the Customer will be responsible for the use, exploitation and dissemination of the content presented therein. It therefore releases ESOKIA from any liability and guarantees it against any recourse that may be brought against it, as a result or due to any loss of profits or commercial disturbance.
In the event of ESOKIA's conviction for any reason whatsoever and/or if the Customer is entitled to compensation for direct damage suffered as a result of ESOKIA's faults in the context of the performance of the Services entrusted to it, the Customer shall be entitled to obtain compensation for his damage within the limit of the sums collected by the Service Provider in respect of the Service in question during the 12 months preceding the event giving rise to the damage, regardless of the legal basis of the claim and the procedure used to bring it to a conclusion.
As the Service Provider is dependent, for the delivery of the obligations placed on it by the Contract, the Customer and certain third parties for whom the Customer must be responsible; the Parties agree that the Service Provider's liability may not be incurred if the event giving rise to the delay or failure to perform the Contract is totally or partially attributable to the Customer or to a third party.
The Service Provider's liability under the Contract is limited to (i) the direct damage caused by its exclusive cause, and (ii) the amount of the sums due to the Service Provider.
The Service Provider shall not be required to compensate (i) any indirect damage, such as loss of : profit, anticipated savings, image, customers, contract, data, exploitation; originating or as a consequence of any failure by the Service Provider, nor (ii) any damage caused to persons or property distinct from the subject of the Contract, nor (iii) the consequences of any action directed against the Customer by a third party (excluding Article 13.3 – Eviction Guarantee).
With regard to software components subject to so-called "free" (or "open-source") software licenses of which the Service Provider is not the author and/or publisher and which could be used or integrated into the Services, the Service Provider cannot offer any guarantee; and the Service Provider's liability cannot be held liable for any direct and/or indirect damage in connection with such components, the Customer declaring himself fully informed of the conditions of use of open-source software or components and accepting absence of any guarantee from the Service Provider in this respect.
The Service Provider is solely responsible for damage caused to the Customer in the context of the performance of the Services.
Article 12: Obligation of confidentiality
ESOKIA undertakes to strictly respect the confidentiality of all information, documents, data or concepts of which it may be aware before, during or after the performance of its Service, as well as the content of the work ordered and carried out.
For the application of this clause, the Service Provider is responsible for its employees as well as for itself. The Service Provider, however, cannot be held responsible for any disclosure if the disclosed elements were in the public domain at the date of disclosure, or if it was already aware of it before the date of signature of this contract, or if it obtained them from third parties by legitimate means.
ESOKIA cannot be held liable for interception or misappropriation of information during the transfer of data, in particular via the Internet. Therefore, it is the Customer's responsibility, when ordering, to inform ESOKIA of the means of transfer that he wishes to see implemented in order to guarantee the confidentiality of any sensitive information.
ESOKIA reserves the right to use the Customer’s name and logo, as well as the description of the Service performed, for reference and only as such.
Nevertheless, if the Customer does not wish to be cited as a reference, he may make a written request to ESOKIA who will respect this request.
Article 13: Intellectual Property
The Service Provider assigns to the Customer, for its internal needs, from their receipt and subject to their full payment, certain intellectual property rights necessary for the performance of the Services by the Service Provider on the Exclusive Account of the Customer under the Contract.
These rights include the rights of use, reproduction, representation, translation, adaptation and exploitation, for and by the Client. They are assigned to the Customer for a period equal to the legal term of copyright protection, and for the whole world.
In the event that the Service Provider uses or integrates into the Services software components subject to so-called "free" (or "open-source") software licenses, of which it is not the author and/or publisher, the rights granted to the Customer on said software will be governed by their own provisions.
The Service Provider retains exclusive ownership of the means, tools, inventions, methods or know-how that pre-existing, born or developed during the performance of the Services, whether they are the subject of specific protection (copyright, patent, trademark, etc.). No right of use is conferred on the Customer regarding these elements.
Any other stipulation concerning the regime of intellectual property rights of the elements created or used under the Contract must be expressly authorized by the Service Provider in the Contract.
It is agreed between the Parties that the Service Provider will have the possibility to use the lessons learned from the Services entrusted to it and to proceed for third parties to developments of elements similar to those it has developed within the framework of the Contract, subject to compliance with its confidentiality commitment provided for in these GTC.
The Service Provider guarantees the Customer against any action consisting an infringement upon the performance of the Services under the Contract concluded according to what is stated in these Terms of Sales.
This guarantee is subject to the following express conditions:
In addition, the Service Provider will not incur any liability if the alleged infringement could have been avoided by the installation and use by the Customer of an update of the results provided by the Service Provider.
By way of derogation from the provisions of this article, with regard to software components subject to so-called "free" (or "open-source") software licenses of which the Service Provider is not the author and/or publisher and which could be used or integrated into the Services, the Customer acknowledges and accepts that the Service Provider may not, in any way whatsoever and whatever the cause, guarantee him the peaceful enjoyment of said software components.
The preceding provisions set the limits of the Service Provider's liability in respect of infringement.
The Customer declares to hold or undertakes to obtain all the rights and authorizations on the elements that he could provide to the Service Provider in respect of the Services performed by the latter, whether he is the owner.
Consequently, the Customer undertakes to make his personal business of any claim or procedure, whatever the form and nature, formulated against the Service Provider and which would be related to the elements given by the Customer to the Service Provider.
Regarding the results of the Service sold, ESOKIA retains full ownership until full payment of the balance invoiced to Its Customer.
The Customer undertakes to keep, if it has been affixed by ESOKIA during the performance of the Service, the mention "Made by ESOKIA" and, in the case of a digital edition, the hyperlink on "ESOKIA" referring to the agency's website: https://esokia.com.
Article 14: Force Majeure
The responsibility of ESOKIA can not be questioned if the non-performance or delay in the performance of one of its obligations described in these GTC, results from a case of Force Majeure. As such, Force Majeure means any serious and destabilizing event for the performance of the Service, occurring in an unpredictable, irresistible and external manner to ESOKIA.
In the event of Force Majeure, ESOKIA will inform its Customer as soon as possible in writing, email, or fax. The Customer will have ten days to ascertain this.
The expected delivery times will be automatically shifted according to the duration of the Force Majeure.
Article 15: Personal Data
ESOKIA undertakes to comply with the legislation in force relating to the protection of privacy with regard to the automated processing of personal data and in particular, the law "Informatique et Libertés" n° 78-17 of January 6, 1978, amended relating to data processing, files and freedoms and Regulation (EU) 2016/679 of April 27, 2016, on the protection of individuals with regard to the processing of personal data and the free movement of this data (GDPR).
The data processed are those voluntarily transmitted by the Customer, in execution of the Services ordered in application of these GTC.
The Customer undertakes to make its best efforts not to communicate to ESOKIA any Personal Data or to give access to Personal Data, in particular by providing only "test" data and/or anonymizing the Customer Data.
In any case, the Customer is prohibited from communicating or giving access to sensitive data within the meaning of the regulations on personal data.
The Customer is solely responsible and guarantees the quality, lawfulness and relevance of the Data. He also guarantees to be the owner of the intellectual property rights allowing him to use and have the Service Provider use the Data. The Customer guarantees ESOKIA on first demand against any damage that would result from its being challenged by a third party for a breach of this guarantee.
The Customer, as data controller, guarantees to fulfill all of its obligations concerning the processing that it implements and that it subcontracts pursuant to the present. In particular, the Customer guarantees ESOKIA that the Personal Data has been collected fairly and adequately in relation to the purpose of the processing and that it has informed the natural persons concerned of the use that is in fact. Within the framework of the purpose of the Contract, ESOKIA cannot be required to ensure this effective compliance or to advise the Customer with regard to the legislation on Personal Data concerning the processing implemented by the Customer.
ESOKIA, guarantees that it will implement the appropriate technical and organizational measures so that the treatments, carried out on behalf of the Customer, meet the requirements of the aforementioned regulations.
The data thus processed by ESOKIA are not the subject of any communication to third parties, except with the express agreement of the Customer. ESOKIA undertakes not to sell, rent, assign or give access to third parties to the data without prior consent unless compelled to do so for a legitimate reason (legal obligation, fight against fraud or abuse, exercise of the rights of defense, etc.).
As part of the data processing, it may be transferred by ESOKIA to servers located in several countries, in particular outside the European Union.
In this case, ESOKIA undertakes to take the necessary guarantees to ensure data protection, in particular by choosing service providers with the same level of guarantee, by opting only for dedicated servers for data storage and by implementing a flow protection measure by encryption.
The transfer is carried out in compliance with the provisions of the GDPR and will be the subject, in the event of a transfer outside the European Union, of a separate agreement on the protection of personal data.
The data are mainly stored in the European Union and are kept for the time strictly necessary for the performance of the services within the limit of the duration of the mission, unless:
During this period, ESOKIA implements the organizational, software, legal, technical and physical means capable of ensuring the confidentiality and security of personal data, so as to prevent their damage, erasure or access by unauthorized third parties.
Access to personal data is strictly limited to ESOKIA employees and agents authorized by reason of their duties and bound by an obligation of confidentiality and, where applicable, to ESOKIA's subcontractors. The subcontractors in question are subject to an obligation of confidentiality and may only use the data in accordance with the contractual provisions of ESOKIA and the applicable legislation.
In accordance with the law "Informatique et Libertés" n° 78-17 of January 6, 1978, modified relating to data processing, files and freedoms and the GDPR the Customer has the following rights:
These different rights are to be exercised directly to ESOKIA / to the Data Protection Officer, by post to the postal address ESOKIA, 38 rue de Berri, 75008 Paris, France or by email to the e-mail address [email protected]. For security reasons and to avoid any fraudulent request, this request must be accompanied by proof of identity of the Customer's legal representative. The proof will be destroyed once the request has been processed.
Article 16: Subcontracting
Some services or tasks necessary for the performance of the Service may be performed in whole or in part by one or more third-party Service Providers (subcontractors) at the choice of ESOKIA, the sole decision-maker with regard to the use of subcontracting, which the Customer expressly acknowledges and accepts.
Article 17: Complaint
The Customer agrees that, whatever the basis of his claim, and the procedure followed to implement it, the possible liability of the Service Provider for the performance of the obligations provided for according to these GTC, will be limited to an amount not exceeding the total amount actually paid by the Customer, for the services or tasks provided by the Service Provider, during the 12 months preceding the event giving rise to the damage, regardless of the legal basis of the claim and the procedure used to bring it to a conclusion.
Article 18: Termination
In the event of a breach by one of the Parties of its contractual obligations under the Contract, the other Party may automatically request the termination of the Contract, if the defaulting Party does not remedy its breach within fifteen (15) working days from the date of receipt of the notification of the breach by registered letter with acknowledgment of receipt.
Termination of the Agreement will only have effect for the future. It may not destroy the Services performed since its entry into force and which will remain definitively acquired by the Customer to be counted and subject to their payment to the Service Provider. In the event of termination, the Customer undertakes to pay the part of the Services performed and which it has validated or accepted until the date of termination of the Contract, under the financial conditions defined in the Contract.
In addition, at the end of the Contract (whatever the cause), each of the Parties will return to the other all the elements (materials, programs, documentation, various information, etc.) that it may have received from the other Party for the execution of the Contract and which will have become irrelevant as a result of the termination, except, with regard to the Services and Deliverables, to the extent and subject to their payment to the Service Provider.
Article 19: Obligation not to solicit personnel
During the term of the Contract concluded hereof and for the twelve (12) months following its expiry, the fact that the Customer solicits or has worked, directly or indirectly, without the prior agreement of ESOKIA, any employee of the latter, will give rise to the payment without delay, by the Customer, 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 by the latter if any.
Article 20: Advertising
Unless previously, expressly and in writing, refuses from the Customer, ESOKIA may report to third parties its relations with the Customer under any Contract concluded herewith.
Similarly, the Contract concluded pursuant to these terms and conditions contained therein are deemed confidential and as such may not be published or communicated to third parties by the Service Provider.
Unless previously refused in writing by the Customer, ESOKIA may also use and reproduce the Customer's names and logos and any other distinctive signs belonging to the latter, in particular as a reference for the purposes of its commercial advertising to third parties.
Article 21: Applicable law and original text
These GTC are governed by French law. The French text of these GTC is authentic as the original text.
Article 22: Dispute Resolution
Beforehand, the Parties undertake to settle amicably any dispute, litigation or dispute arising from the contractual relationship initiated. In the absence of agreement, any dispute as to the validity and/or interpretation of these GTC and/or the performance of the Services subject heref to this Agreement shall be the exclusive jurisdiction of the Commercial Court of Paris, even in the event of multiple defendants and warranty claims.
This online version of ESOKIA's General Terms and Conditions of Sale takes precedence over any other printable version. These online GTC can be modified at any time, the applicable version is the one in force on the date of signature of a quote by a Customer.
Last updated: 2021-07-01 in Paris, France.