Terms and conditions of sale
CLAUSE 1 – Scope
These Terms and Conditions of Sale (“Ts&Cs”) constitute, pursuant to Article L.441-6 of the French Commercial Code, the sole basis of the commercial relationship between the parties.
Their purpose is to lay down the conditions under which the Company BLEEXO (the “Supplier”, “we” or “us”) provides business customers (the “Customer(s)”) that request them, through the Supplier’s website, in person or in hard copy, with the following services: “real-time measurement and analysis of engagement drivers within the company and consultancy relating to that service” (the “Services”).
They apply, without restriction or reservation, to all Services provided by the Supplier to Customers of the same class, regardless of any clauses that may be included in the Customer’s documents, particularly its terms and conditions of purchase.
In accordance with the regulations in force, these Terms and Conditions of Sale are systematically communicated to any Customer that requests them, to enable it to place orders with the Supplier.
Any order implies unreserved acceptance, on the Customer’s part, of these Terms and Conditions of Sale, which the Supplier reserves the right to amend occasionally.
The information included on the Supplier’s website, and its catalogues, leaflets and price lists are given for guidance only and are subject to change at any time. The Supplier is entitled to make any amendments thereto that it sees fit.
CLAUSE 2 – Orders
2-1 The related customer account must be opened before any order can be accepted.
A customer account is opened once the Customer has accepted our Ts&Cs; the said Ts&Cs must be signed by a person authorised to enter into commitments on the company’s behalf.
Each time a customer account is opened, we need to be provided with the full legal details of the Customer’s company, accompanied by a Kbis (French business register extract) and the details of the bank account from which the direct debit payments will be taken.
Orders will only be considered if they are placed by means of the Customer’s purchase order or of our quote, as applicable, provided that they are dated, that they bear the handwritten statement “Read and approved”, the signature of an authorised representative of the Customer and the stamp of its company, and that we have examined, in advance, the financial position of the Customer and verified that it is up to date with its payments, in accordance with Clause 4 below.
Orders then become final and binding on the Customer.
Sales of a Service are only complete once the Customer has been sent acknowledgement of receipt accepting the order by the Supplier.
The order is non-transferable and cannot be assigned without our advance written permission.
All our Services are reserved for businesses. Consequently, we reserve the right to reject any order that we deem not to fulfil that criterion.
2-2 Changes to the order
Any changes to the order that the Customer makes will only be applied, within the limits of what is possible for the Supplier, if written notice of them is given at least seven (7) days before the scheduled date for provision of the ordered Services, once the Customer has signed a specific purchase order and any adjustments to the price have been made.
2-3 If a deposit is paid for the order
In the event that, once the Supplier has accepted an order, the Customer cancels it less than ten (10) days before the scheduled date for provision of the ordered Services for any reason, other than force majeure, the deposit paid for the order, as set out in Clause 4 hereof, shall be vested, ipso jure, to the Supplier and shall not give rise to any form of repayment.
CLAUSE 3 – Prices
The Services will be provided at the Supplier’s prices in force on the day on which the order is placed, as stated on the quote produced in advance by the Supplier and accepted by the Customer, as stated in Clause 2, above. Prices are stated in euro and excluding tax. An invoice is produced by the Supplier and sent to the Customer each time the Services are supplied.
CLAUSE 4 – Payment conditions
4-1 Payment deadlines
In the event of payment in full on provision of the Services
The price is payable immediately and in full on the date on which the ordered Services are provided, pursuant to Clause 5, below, and as stated on the invoice provided to the Customer.
In the event of payment of the deposit on ordering
Part of the full price of the ordered Services may be demanded as a deposit when the order is placed, in accordance with the quote provided to the Customer.
The balance of the price is payable in full on the day on which the said services are provided, pursuant to Clause 5, below.
The Supplier shall not be required to provide the Services ordered by the Customer if it has not paid the price thereof under the conditions and using the means stated in these Terms and Conditions of Sale.
Invoices are payable by cheque or bank transfer within a maximum of sixty (60) days from the date on which the invoice is issued.
The Supplier will not apply any discount for payment before the date stated on the invoice or within a period shorter than that stated in these Terms and Conditions of Sale.
4-2 Late penalties
In accordance with Article L.441-6 of the French Commercial Code, default on or late payment of any sums due will lead, automatically and as of right, to the application of late penalties payable the day following the settlement date stated on the invoice. These penalties will be charged at a percentage three times the statutory interest rate on the total, inclusive of all taxes, for the Services stated on the said invoice.
Moreover, the settlement of sums due after the maturity date stated on the invoice will, ipso jure, increase the amount thereof by the fixed statutory indemnity of forty euro (€40) and, potentially, by a supplementary indemnity, in accordance with Article L.441-6(12) of the French Commercial Code.
Late payment will result in all sums owed to the Supplier by the Customer becoming immediately payable, without prejudice to any other action that the Supplier could be entitled to take against the Customer in respect thereof.
Should the above payment conditions not be respected, the Supplier also reserves the right to suspend or even cancel provision of the Services ordered by the Customer, to suspend fulfilment of its obligations pursuant to Article 1219 of the French Civil Code, and to reduce or even cancel any discounts granted to the Customer.
4-3 Lack of offsetting
Except where the Supplier has given its express prior agreement in writing, and provided that reciprocal claims and debts are uncontested, liquidated and due, the Customer may not validly offset any penalties for the late provision of the Services ordered or the nonconformity of the order, on the one hand, against the sums owed by the Customer to the Supplier in respect of the purchase of the said Services, on the other.
CLAUSE 5 – Means of provision of the Services
The Services requested by the Customer will be provided within the period specified on the quote submitted to the Customer.
That period does not constitute a deadline and the Supplier cannot be held liable by the Customer in the event of a delay with provision of the Services that does not exceed ten (10) business days. In the event of a delay in excess of ten (10) business days, the Customer may request cancellation of the sale.
Deposits already paid will then be returned by the Supplier.
The Supplier cannot, under any circumstances, be held liable in the event of a delay with or suspension of the service for which the Customer is responsible or of force majeure.
The Services will be provided electronically, via the Supplier’s platform.
In the absence of reservations or complaints expressly issued by the Customer when it receives the Services, their quantity and quality shall be deemed compliant with the order.
The Customer will have a period of three (3) business days, from provision of the Services, to submit, in writing, any reservations or complaints to the Supplier, along with all supporting documents relating thereto.
No complaint can be validly accepted in the event that the Customer fails to observe these formalities and deadlines.
The Supplier shall (insofar as is possible), within the shortest possible period and at its expense, repay the Customer, using appropriate means approved by the Customer, for any Services duly proven to be non-compliant by the Customer, or shall rectify that non-compliance.
Where the Customer has a specific request about the conditions of provision of the Services, duly accepted in writing by the Supplier, there shall be a specific complementary invoice for related cost, on the basis of a quote accepted in advance by the Customer.
Moreover, the Customer is hereby notified that all data collected during performance of the Service will remain confidential to ensure the reliability of the Service. The Supplier may not, under any circumstances, be required to release these data from anonymity.
CLAUSE 6 – Confidentiality and data-processing
In the context of their contractual relations, the parties undertake to respect the regulations in force applicable to the processing of personal data, particularly Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (the “General Data Protection Regulation”), applicable as of 25 May 2018.
In relation to the personal data of the Customer’s employees:
The Customer acts in the capacity of data controller in relation to its employees’ personal data. In accordance with Article 4(7) of the General Data Protection Regulation, the Customer alone determines the purposes and means of the processing of personal data.
Pursuant to Article 25 of the General Data Protection Regulation, the Customer undertakes to:
- Implement appropriate technical and organisational measures for ensuring and being in a position to demonstrate that the processing is carried out in accordance with the General Data Protection Regulation; these measures are re-examined and updated where necessary;
- Fulfil its obligation to transparency and traceability in relation to its employees and to the Supplier.
The Supplier acts in the capacity of data processor. The Supplier offers a service entailing the processing of personal data on behalf of another body (the aforementioned Customer). The Supplier is authorised to process, on behalf of the data controller, the personal data necessary for achieving the following purpose: the conducting of surveys and reproduction of results in the form of statistics.
Pursuant to Article 28 of the General Data Protection Regulation, the Supplier undertakes to:
- Process data solely for the purpose(s) for which it has been appointed;
- Process personal data only on the documented instructions from the data controller;
- Ensure that the persons authorised to process the personal data have committed themselves to confidentiality or are subject to an appropriate statutory obligation of confidentiality;
- Take all the measures required to ensure secure processing;
- Inform Customers of any breaches of personal data within a maximum of 72 hours of discovering it, via e-mail or any other means;
- Destroy all personal data once provision of the Services has ended;
- Taking into account the nature of the processing, assist the data controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the controller’s obligation to respond to requests for exercising the data subject’s rights;
- Assist the data controller in ensuring compliance with the obligations pursuant to the General Data Protection Regulation.
Clause 7 – Supplier’s liability – Warranty
The Services provided by the Supplier are as described in the catalogue or sales documentation. It falls to the Customer to prove any nonconformity. The Customer, as a professional, has sole responsibility for consulting and choosing the Services provided by the Supplier.
In accordance with the legislation, the Supplier warrants the Customer against any nonconformity of the Services resulting from a defect with the design or provision of the said Services, except where there is any negligence or fault on the Customer’s part.
The Supplier can only be held liable in the event of proven fault or negligence and such liability is limited to direct harm, excluding any indirect harm of any nature.
To uphold its rights, the Customer shall inform the Supplier, in writing, of the existence of nonconformities within a maximum of five (5) business days of discovering them, failing which any related proceedings are prohibited.
The Supplier shall, at its sole expense, use appropriate means approved by the Customer to rectify the Services deemed defective or to have them rectified.
In any event, should it be established that the Supplier is liable, the Supplier’s warranty shall be limited to the amount, excluding tax, paid by the Customer for provision of the Services.
CLAUSE 8 – Intellectual property rights
The Supplier retains ownership of all intellectual property rights over the studies, drawings, models, prototypes, etc. produced (even at the Customer’s request) in respect of provision of the Services to the Customer.
The Supplier gives permission for the Customer to use the media provided after analysing the data gathered. Nevertheless, the Customer undertakes not to use those media for commercial purposes.
They are made available to the Customer on a non-exclusive basis, so that it can make use of them in the context of the Service.
Consequently, the Supplier reserves the right to grant any other licences, usage rights or rights to royalties to any person of its choice, or to make use of the said media that do not include the collected data itself, directly and personally.
CLAUSE 9 – Unforeseeability
These Terms and Conditions of Sale expressly exclude the legal regime for unforeseeability provided for in Article 1195 of the French Civil Code for all the Supplier’s operations to provide the Customer with the Services. Therefore, the Supplier and the Customer both waive their right to invoke Article 1195 of the French Civil Code and the unforeseeability regime provided for therein; they undertake to fulfil their obligations, even if the balance of the contract is disrupted by circumstances that were unforeseeable when the sale was concluded, and even if their fulfilment would be excessively onerous, and to bear any economic and financial consequences thereof.
CLAUSE 10 – Proportional price reduction in the event of imperfect fulfilment of the obligation
Should one party breach any of its obligations, the obligee shall be able, pursuant to Article 1223 of the French Civil Code, ten (10) business days after the obligor has received and failed to take action in response to notice to comply, served by registered letter with acknowledgement of receipt, to accept incomplete performance of the contract and request a proportionate price reduction, by giving written notice to the obligor that this reduction is being imposed on it.
In the event that the obligee has paid, it may, under the same conditions, accept incomplete performance of the contract and request a proportionate price reduction along with reimbursement of the overpayment by the obligor.
In the absence of agreement between the Parties on the amount of this proportionate price reduction, it shall be determined on the basis of expert opinion, pursuant to Article 1592 of the French Civil Code.
In accordance with Clause 5, above, the Customer may not, under any circumstances, request this reduction once the complaint deadline has passed.
CLAUSE 11 – Exception for nonperformance
It should be remembered that, pursuant to Article 1219 of the French Civil Code, either party may refuse to fulfil its obligation, even where it is due, if the other party does not fulfil its own obligation and if this nonperformance is sufficiently serious, meaning if it could jeopardise the continuation of the contract or fundamentally disrupt its economic balance. The suspension of performance shall take effect immediately on receipt by the defaulting party of the breach of contract notice sent to it for that purpose by the non-defaulting party, stating the intention to enforce the exception for nonperformance unless the defaulting party rectifies the breach in question, served by registered letter with acknowledgement of receipt or on any other written durable medium that can accommodate proof of sending.
This exception for nonperformance may also be used preventively, pursuant to Article 1220 of the French Civil Code, if it is clear that one of the Parties will not fulfil its obligations by the due date and that the consequences of this nonperformance are sufficiently serious for the non-defaulting party.
The party that takes the initiative to exercise this right does so at its own risk.
The suspension of performance takes immediate effect, on receipt by the party presumed to be defaulting of notice of the intention to enforce the preventive exception for nonperformance until the party presumed to be defaulting fulfils the obligation that will clearly be breached in the future, served by registered letter with acknowledgement of receipt or on any other written durable medium that can accommodate proof of sending.
If the impediment were final or lasted longer than two (2) months, these Terms and Conditions of Sale would simply be rescinded, pursuant to Clause 13.
CLAUSE 12 – Force majeure
The parties cannot be held liable if the failure to fulfil or delay with fulfilling any of their obligations, as described herein, results from a case of force majeure, within the meaning of Article 1218 of the French Civil Code.
The party which identifies the event shall, without delay, inform the other party that it is unable to perform its service and provide it with evidence of this. Where obligations are suspended, neither party can, under any circumstances, be held liable for failing to fulfil the obligation in question, or incur damages or late penalties.
Fulfilment of the obligation is suspended throughout the force majeure period, if it is temporary and does not exceed a duration of ninety (90) days. Consequently, as soon as the reason for suspension of their reciprocal obligations no longer applies, the parties shall make every effort to start fulfilling their contractual obligations normally as quickly as possible.
To that end, the impeded party shall notify the other that it will start fulfilling its obligation again, by registered letter with acknowledgement of receipt or letter delivered by an officer of the court. If the impediment is final or lasts longer than ninety (90) days, these Terms and Conditions of Sale shall simply be rescinded, pursuant to Clause 13.
During this suspension, the parties agree that the costs incurred will be shared equally.
CLAUSE 13 – Rescission of the contract
13.1 Rescission for sufficiently serious nonperformance
The non-defaulting party may, notwithstanding clause 14(3), below, in the event that the other party defaults in a sufficiently serious manner on any of its obligations, give the defaulting party notice, by registered letter with acknowledgement of receipt, of the rescission hereof for nonperformance through fault, ten (10) days after it has received and taken no action in response to notice to comply, pursuant to Article 1224 of the French Civil Code.
13.2 Rescission for force majeure
Rescission as of right for force majeure may only, notwithstanding Clause 14(3), above, take place five (5) days after notice is sent by registered letter with acknowledgement of receipt.
13.3 Rescission for one party’s failure to fulfil its obligations
In the event that either party fails to fulfil the obligations laid down in Clauses 2, 4, 5 and 7 hereof, the injured party is free to rescind the resulting contract.
It is expressly agreed that such rescission for one party’s failure to fulfil its obligations will take place, ipso jure, ten (10) days after a notice to comply has been sent and ignored, in whole or in part. Notice to comply can be served by registered letter with acknowledgement of receipt.
That notice shall state the intention to enforce this clause.
CLAUSE 14 – Applicable law – Language of the contract
By express agreement between the parties, these Terms and Conditions of Sale, and the resulting purchases and sales are governed by French law.
They have been drafted in French. Should they be translated into one or more other languages, only the French version will be authoritative in the event of a dispute.
CLAUSE 15 – Disputes
Any disputes to which this contract could give rise, concerning its validity, its interpretation, its performance, its rescission, and the consequences and results thereof, shall be subject to the exclusive competence of Toulouse Commercial Court, even in the event of multiple suits or parties, of an impleader or of an urgent application for an interim order.
CLAUSE 16 – Customer’s acceptance
The Customer expressly approves and accepts these Terms and Conditions of Sale, and declares and acknowledges that it has read them carefully; consequently, it waives the right to invoke any contradictory document, in particular its own terms and conditions of purchase, which shall be unenforceable on the Supplier, even if it has read them.