In the absence of a signed contract between the Parties, the following provisions apply to the Services provided by PRODWARE. Assuming the signature of a contract between the Parties governing the services, the clauses of the latter prevail over any other document, including the following provisions.
PRODWARE is prepared to negotiate on each of the provisions provided below. In the absence of any request for negotiation and / or signature of a contract between the Parties, the purchase order by the customer to PRODWARE implies the acceptance without any reservation of the present general terms and conditions.
Therefore no written annotation of the customer on the quotation or on any other contractual document will have value between Parties, except if agreed by written notice by PRODWARE for the said adjustments or references.
CHAPTER I: COMMON PROVISIONS
1/ ORDERS AND EXECUTION
Any order placed with PRODWARE is final on the acceptance by PRODWARE of a purchase order signed by the Customer.
2/ FINANCIAL ARRANGEMENTS
The services are provided under the tariff conditions specified in the Purchase Order. Applicable taxes will be invoiced additionally. Travel and accommodation costs are borne by the Customer.
Unless specified otherwise on the Purchase Order, each invoice is payable thirty (30) days from the invoice date by bank transfer. No discount is applied in case of early payment.
In the absence of payment of an invoice owed by the Customer, PRODWARE reserves the right to suspend the services immediately without prior notice, until full payment is received. The Customer must bear all consequences of this suspension, including price increases, delays in the deadlines, etc.
Any late payment will also lead to the immediate payability of all sums remaining due by the Customer to PRODWARE, whatever they relate to.
According to the article L.441-6 of the French Commercial Code the payment default at the -deadline could result in the payment of default interest calculated from the date of said deadline based on the legal interest rate applicable in case of late payment in commercial transactions.
Moreover, in case of late payment by the Customer, a fixed compensation for recovery costs in the
amount of forty (40) euros will be due by the Customer automatically. An additional compensation will be claimed by PRODWARE as soon as the recovery costs incurred exceed the amount of the above-mentioned fixed compensation.
Any cancellation of a day of services less than five (5) working days before the scheduled date of the session, involves the billing of this one up to 100%. Cancellations must be made by mail or fax. The date to be considered in determining the five (5) day period is the date of arrival at Prodware of the fax or mail.
Each Party undertakes, regarding the content of the provisions in the agreement (including the present document and associated commercial terms), and regarding the information of the other Party which may be known within the implementation of the services, insofar as such information is of a sensitive nature in terms of economic, technical or commercial interests, or is declared as such by either of the Parties, to keep such information strictly confidential and refrain from communicating it to anyone, except as where strictly necessary for the proper implementation of the services, and to refrain from using it, directly or indirectly, or allowing its use by a third party under its control, for any purpose other than the proper execution of the present agreement.
This obligation will remain in force for the duration of the present document and for a period of two (2) years from the end of the services.
4/ PERSONAL DATA
Prodware, as Processor, implements a personal data processing in order to manage the client and prospects accounts. The affiliates of Prodware and its partners may be recipients of certain personal data. According to the Law “Informatique et Libertés”, the Client has the right of access, opposition and rectification that the Client may exercise, via firstname.lastname@example.org. The provisions enforceable for the Client's data processing are available at the following link: https://gdpr.prodware.org/docs/fr/DPA_EN.pdf
5/ WARRANTIES AND LIABILITY
PRODWARE undertakes, in the context of an obligation of resources, to give all reasonable care possible to the implementation of its deliveries and services. PRODWARE will not be held liable for any delay in the implementation of the deliveries and services.
PRODWARE guarantees that it executes its services through qualified staff, as provided by the law, and that it is not affected by the provisions of the Labour Code which prohibit illegal or irregular work.
It certifies that it has taken out an insurance policy to cover its civil and professional liability.
The Customer is responsible under its own direction for making regular backups of all data, files and programs to which PRODWARE may have access. The Customer therefore waives the right to invoke the liability of PRODWARE for damage occurring to files, stored data or any other documents or programs that it could entrust to PRODWARE or which PRODWARE could be able to access in the context of the services to be provided. PRODWARE will in no case be held responsible for any contamination by any viruses of the files and/or data of the Customer and the potentially damaging consequences of this contamination.
Indirect damage suffered by the Customer is excluded from any claim for compensation. Indirect damage includes, without limitation, loss of revenue, business interruption, loss of customers, loss of orders, loss of profit, loss of financial yield, loss of income, damage to the brand image, interruption of use or availability of the data, loss of data and/or files, or any claim made by a third party whatsoever against the Customer.
In any event, the amount of compensation payable by PRODWARE, if its liability was recognised by a final decision of a court, including all reasons, may not exceed the total amount actually received by PRODWARE according to the purchase order relating to the services giving rise to the incident.
It is expressly agreed between the Parties and accepted by the Customer that the provisions of this clause will continue to apply after the termination hereof recognised by a final court decision.
These provisions determine a distribution of risks between PRODWARE and the Customer. The price reflects this distribution and the limitation of liability described above.
6/ LAW AND AWARDING OF JURISDICTION
These provisions are subject to French law.
In case of dispute, and after attempts of resolution via an amicable procedure, jurisdiction is assigned to the Commercial Court of Paris, notwithstanding multiple defendants or a warranty claim, including for procedures on request or emergency procedures. In the case of the Customer’s opposition to a request for an injunction to pay, express jurisdiction is also attributed to the Commercial Court of Paris.
CHAPTER II: PROVISIONS RELATED TO MATERIAL SALES AND INFRASTRUCTURE SOFTWARE
The delivery is performed by a shipping company. Delivery times are provided as an indication and may vary in the event of an external event occurs (in particular in the event of a storm, blockage of the transport routes, etc.), or temporary stock-out at suppliers. Any late delivery with respect to the indicative time period cannot, in any case, neither give rise to an order’s withdrawal from the Customer nor to a discount on the agreed price or to the payment of damages.
The equipment is sold with its incidentals and original instructions supplied by the manufacturer. PRODWARE cannot be held liable for the content and language of these products.
Any complaint for non-conformity or missing material on delivery must be transmitted to PRODWARE, with copy of the reservations made to the carrier, within 48 hours of the confirmation signature of delivery. The reservations made at the time of delivery must be precise and complete as to the nature of the damage on the packaging and the condition of the goods (damage reservations and number of missing parts / damage to the goods). It is imperative to check all products at the reception.
It shall be the Client's responsibility to provide any justification as to the reality of the anomalies observed when receiving the equipment. The refusal of products on delivery by a Customer may be considered as abusive if this Customer cannot justify the reality of the anomalies invoked on its delivery order. In the event of abusive refusal of the products delivered, PRODWARE may claim from the Customer a lump sum indemnity of 250 € ex VAT.
Late complaints cannot be taken into account and the Customer's liability is then solely and fully committed.
The transfer of risks takes place ex warehouse (ex works: EXW).
Any third party license granted by Prodware is issued in accordance with the terms of the software publisher. It is the Client's responsibility to obtain and comply with the conditions applicable to the software for which the Client will obtain a right of use via Prodware.
9/ TRANSFER OF OWNERSHIP
PRODWARE retains ownership of the materials sold until receipt by PRODWARE, effective and complete of their price, the Customer has to keep the goods in perfect condition until their payment.
Until full payment of the price, the Customer cannot pawn the materials, exchange them or transfer them to property as collateral. This reservation of ownership clause does not preclude the transfer of risks to the Customer, as soon as the equipment is delivered, in accordance with the above provisions. The Customer undertakes to provide all its care for the custody and preservation of the products and to subscribe to any useful insurance. Products delivered not yet fully paid must be individualized and not mixed with other products.
The opening of a collective procedure for the benefit of the Customer cannot defeat the claim of the goods by PRODWARE. In case of partial payment, this will be charged first to the late payment penalties, interest and the oldest claims.
10/ EQUIPMENT RETURNS
No return or take-back of materials can be done without the prior agreement of the customer service of PRODWARE. PRODWARE reserves the right to refuse any return that does not comply with the conditions agreed with customer service.
As part of the legal warranty, the equipment must be returned in its original packaging, intact, accompanied by any incidentals, operating instructions and documentations, as well as the original invoice. Any missing or damaged identification label will void the legal warranty.
Returns of materials accepted by PRODWARE will result in the establishment of a credit or the replacement of materials identically.
The costs and risks of the return will be borne by the Customer, except in the event of return exclusively attributable to PRODWARE. Any return accepted and justified by reasons attributable to the Client will give rise to the invoicing to the Client of administrative expenses of management, of a lump sum of 100 €.
In addition to the legal warranty of latent defects, the products sold are covered by a warranty from the software publisher of the relevant manufacturer, exclusive of any other warranty. PRODWARE does not guarantee that the materials ordered by the Customer will satisfy the specific needs of the Customer.
CHAPTER III: PROVISIONS RELATED TO THE SERVICES IMPLEMENTATION
The contract takes effect on the acceptance of the order by PRODWARE and ends after the completion of the ordered services and the payment of said services by the Customer.
After defining its needs according to its structure, organisation and the knowledge of its staff, the Customer wishes PRODWARE to provide the services described in the issued order. These services, thus defined, can be equally installation, training and consulting services.
The Customer undertakes to make available to PRODWARE all information and all documents necessary for the implementation of the services in good conditions.
Generally, the Customer undertakes to ensure that the staff of PRODWARE enjoy free access to the premises where the services must be provided and to its computing facilities.
The schedule optionally attached to the Purchase Order corresponds to a realistic forecast based on the information supplied to PRODWARE by the Customer. It may change according to the technical constraints and elements independent of the will of the Parties; it is purely indicative unless expressly stated otherwise. The refinement of the Customer’s needs may lead to changes in the estimated costs related to the provision of the services. Simply exceeding the expected completion dates in the schedule does not lead to a presumption of fault on the part of PRODWARE in performing its obligations; the Parties agree that the good adherence to the estimated schedule depends on the availability of staff, software, premises and data that each of them is obliged to provide according to the present document.
Except for written provisions to the contrary, the Customer is the prime contractor of the services provided in the context of this document.
Each Party waives the right to engage or employ, directly or through an intermediary, any employee of the other Party, whatever his specialisation and even if the initial request is made by said employee. This waiver is valid for the duration of the present document and for a period of two (2) years from the end of the services. In the event that a Party does not respect this obligation, it must indemnify the other Party immediately by paying it a lump sum equal to the gross salary that this employee has received during the twelve (12) months preceding his departure.
14/ RIGHTS GRANTED
PRODWARE grants the Customer:
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