Conditions of use
IIDRE GENERAL TERMS AND CONDITIONS
Supply and maintenance
This document defines, subject to any modifications and/or derogations that IIDRE and the client (hereinafter referred to as the "Client") may agree to in writing, the general conditions governing the supply by IIDRE to the Client of Equipment and associated maintenance, Services and/or Software.
IIDRE and the Client are hereinafter referred to individually as the "Party" and collectively as the "Parties".
ARTICLE 1 - DEFINITIONS
The following terms have the following meaning:
"Prior knowledge" means all knowledge, information, documents, data, plans, studies, specifications, patentable or unpatentable know-how, Software, of any kind whatsoever and on any medium whatsoever, held prior to the signing of the Order by IIDRE or the Client and necessary for the performance of the Order.
"Order" refers to all the contractual documents between IIDRE and the Client, consisting of the following elements
- the special conditions and/or the Order and its annexes;
- the present "Supply and Maintenance" general conditions;
- the technical specifications;
- the technical and administrative prescriptions which define the procedures to be followed by each party for the proper execution of the Order;
In the event of a discrepancy or contradiction between the stipulations of one or more contractual documents, the order of priority shall be that referred to in the list set out above.
"Equipment" means the equipment supplied by IIDRE to the Client under the Order.
"Software" means the software delivered by IIDRE to the Client and for which IIDRE grants a non-exclusive licence for use under the conditions defined in the Order.
"Maintenance" means the corrective maintenance provided by IIDRE to the Client under the Order;
"Services" means the development services provided by IIDRE to the Client under the Order;
"Site" refers to the place where the Services are performed.
ARTICLE 2 FORMATION OF THE ORDER
2.1. All IIDRE offers are made in writing. IIDRE cannot be bound by a verbal offer.
2.2. Unless a derogation is expressly accepted by IIDRE, the period of validity of an offer is limited to 1 month from the date of sending. Beyond this period, IIDRE is entitled to refuse the Order or to modify the conditions thereof.
2.3 IIDRE shall only be deemed to be bound to the Client once IIDRE has accepted the Order signed by the Client.
ARTICLE 3 CHANGES TO THE ORDER
Any modification to the Order shall only be binding on the other Party once the Parties have signed a written agreement expressly referring to the Order.
ARTICLE 4 TIME LIMITS FOR PERFORMANCE
4.1. 4.1. The time limits for performance are specified in the Order.
4.2. 4.2. The time limits for the delivery of the Equipment and the performance of the Services and Maintenance are subject to the Customer's compliance with its own obligations, such as payment of contractual instalments and the timely supply of the documents, information, products or materials required to perform the Order.
4.3. The deadlines are automatically extended in the event of a delay not exclusively attributable to IIDRE, such as but not limited to the delay of IIDRE's supplier(s) or subcontractor(s) affected by the delay or in the event of force majeure (as defined in Article 14 "Force majeure").
4.4. A delay on the part of IIDRE does not constitute a sufficient event to give rise to a breach of the Order.
ARTICLE 5 PRICES PAYMENTS
5.1. Prices :
Unless otherwise stipulated in the order, the price of the Equipment, Maintenance, Software licences and the execution of the Services is expressed in euros, excluding taxes. It is firm and non-revisable, fixed for Equipment and Software packaged, loaded, delivered Free Carrier Mérignac (France), IIDRE establishment (FCT establishment IIDRE, Incoterms CCI, 2010 edition).
The price mentioned in the Order does not include (i) taxes such as VAT, import duties, (ii) transport and insurance costs.
5.2.1. Unless otherwise stipulated in the Order, the payment schedule for the Equipment and Maintenance is as follows
- one hundred per cent (100%) on the Order;
5.2.1. Unless otherwise agreed in the Order, the payment schedule for Software royalties shall be as follows
- one hundred percent (100%) upon placing the Order;
5.2.2. 5.2.2. Requests for advance payments and payments sent by IIDRE to the Client are payable at the latest within thirty (30) days of the end of the month of the date of the invoice or the date of the request for advance payment, by cheque or bank transfer at IIDRE's discretion.
5.2.3. Payments shall be made without any deduction of any kind, no compensation being allowed by right. Any complaint or claim by the Client shall not have the effect of deferring or suspending payments.
5.2.4. Any delay in payment shall automatically result in the application of late payment interest calculated at a rate equal to three times the legal interest rate, from the contractual due date until the day of full payment, without prejudice to the damages to which IIDRE may be entitled. These penalties are payable upon receipt of the notice issued by IIDRE informing the Client that these penalties have been charged.
ARTICLE 6 - CLIENT'S OBLIGATIONS
6.1. The Client must supply IIDRE in good time with all the information specified in the Sales Order that is necessary for its performance. In no event shall IIDRE be held responsible for any failure or error, notably in the design or manufacture of the Product, resulting from the use of all or part of the Foreground Information provided by the Client.
6.2. For the installation of the Equipment and Software and the execution of the Maintenance and/or Services carried out on Site, the Client undertakes to give IIDRE access to the Site, to provide it with all access authorisations, site regulations, and to inform it of all the obligations that arise for IIDRE from the application of the regulations concerning the intervention of companies on the Site. The Client must provide, at no cost to IIDRE, all the installations, services and amenities and all the materials and tools (other than those supplied by IIDRE as defined in the Order) necessary for the installation and/or Maintenance of the Equipment and/or the performance of the Services carried out on Site. After use, all these installations and tools must be returned to the Client and IIDRE may not be held responsible for their normal wear and tear and/or any damage resulting from their use as a good professional.
ARTICLE 7 DELIVERY RECEPTION
7.1 IIDRE must notify the Client of the availability of the Equipment and Software, FCT in its establishments or those of its subcontractors. The Client is invited to take part in the acceptance operations at the end of which an acceptance report must be drawn up. The report is drawn up jointly and signed by the Parties in accordance with the conditions set out in the Order. In the absence of the Client, the report shall be deemed to be contradictory.
If the Client does not take delivery of the Equipment and Software on the agreed date, it shall nevertheless be obliged to make the payments provided for in the Order on that date, without prejudice to any additional costs it may incur.
The Client expressly agrees to indemnify and hold harmless IIDRE from any liability in connection with the removal and transport of the Equipment.
7.2. As soon as the Services are completed by IIDRE, the Parties must draw up and sign a joint report on the successful completion of the Services.
ARTICLE 8 TRANSFER OF RISK AND OWNERSHIP
8.1. The risks of loss and/or damage to the Equipment and Software shall be borne by the Client as from receipt of the Equipment and/or Software, in accordance with the procedure defined in article 7.1 (Receipt of Equipment and/or Software).
8.2 IIDRE shall remain the owner of the Equipment until full payment by the Client of the amounts due under the Order.
8.3 IIDRE shall remain the owner of the Software and no transfer of ownership of the Software shall take place as a result of the Order. The Order only grants the right to use the Software.
ARTICLE 9 INSTALLATION OF EQUIPMENT AND SOFTWARE
9.1. The Customer shall provide, free of charge, the raw materials, consumables, energy and any other materials required in sufficient quantity on the date and during the period set for the installation of the Equipment and Software. The Customer's personnel must be available during the period necessary for the installation of the Equipment and Software.
9.2. At the end of the installation, a report on the installation of the Equipment and/or Software is drawn up and signed by IIDRE and the Client. If, for reasons not exclusively attributable to IIDRE, the installation or the signing of the report cannot take place within the period stipulated in the Order, the installation of the Equipment or Software shall automatically be pronounced and the signing of the installation report shall be deemed to be contradictory at the end of this period.
ARTICLE 10 WARRANTY
Unless otherwise stipulated in the Order, IIDRE shall guarantee the Services supplied against any defect recognised as being due to its own fault and not conforming to the Order, for a period of six (6) months from the date of the report on completion of the Services. During this warranty period, IIDRE undertakes, at its option, to redo the Services or to correct the non-conformity of the Services.
10.2.1. IIDRE guarantees the Equipment and parts included in the Equipment against any operating defect resulting from a manufacturing defect and rendering the Equipment non-compliant with the Order. The warranty period is twelve (12) months from the date of the Equipment installation report.
10.2.2. If such a defect is revealed, the Customer must immediately inform IIDRE in writing, providing all information likely to characterise the nature of the defect found. The Client must give IIDRE all the facilities it needs to ascertain the defect and to remedy it.
10.2.3. During the warranty period, IIDRE must modify, repair or replace, at its discretion, the defective Equipment, if the Client provides proof that the malfunctioning defect is directly and exclusively attributable to IIDRE.
10.2.4. The warranty only applies insofar as the Equipment delivered has been correctly received, handled, transported, stored, maintained, installed and used by the Client, in accordance with the rules of the trade and under normal conditions in the type of industry in question, by authorised personnel, without being subjected to disturbances, experimental activities, research and development activities, accidents, alterations, abuse or any misuse.
10.2.5. In the event of a warranty, IIDRE shall bear the costs of:
(i) the parts required to repair, modify or replace the defective Equipment,
(ii) the outward transport to IIDRE of the defective parts,
(iii) the return transport of the repaired, modified or replaced parts to the customer's Site.
10.2.6. The following are excluded from the warranty
- defects arising in whole or in part from a design imposed by the Customer or from Prior Knowledge of the Customer, products or materials supplied by the Customer or from any abnormal use of the defective Equipment;
- normal wear and tear of the Equipment, deterioration of the Equipment due either to negligence or to a lack of supervision or maintenance or to a false operation attributable in whole or in part to persons other than IIDRE;
- defects in the Equipment resulting from the Client's decision to carry out modifications or repairs himself or to have them carried out by third parties.
10.2.7. Any warranty is also excluded when, without having obtained the prior written consent of IIDRE:
(i) the Client proceeds himself or has a third party proceed with the commissioning of the Equipment;
(ii) the Client installs spare parts on the Equipment that are supplied by third parties.
10.3.1 Guarantee of proper operation
IIDRE guarantees the Client for the duration of the Software licence that the Software will function in accordance with the functionalities described in the Order. During this warranty period, IIDRE shall use its best efforts to replace or repair the Software if it does not function in accordance with the Order, within 15 working days following written notification of the defect by the Client.
10.3.2 Exclusion of warranty
The warranty provided for in Article 10.3.1 above shall not apply to all defects affecting the Software due in whole or in part to the following causes
accidents, abnormal physical electrical or electromagnetic conditions,
negligence on the part of the Client in using the Software (non-compliance with the Order).
IIDRE does not guarantee that the operation of the Software will be uninterrupted or error-free.
10.4 THE ABOVE PROVISIONS DEFINE THE ENTIRETY OF IIDRE'S OBLIGATIONS UNDER THE WARRANTY. ANY OTHER WARRANTY AND/OR REMEDY NOT EXPRESSLY PROVIDED FOR, OF WHATEVER NATURE, IS EXPRESSLY EXCLUDED.
ARTICLE 11 - CORRECTIVE MAINTENANCE
11.1 IIDRE undertakes, for a period of five (5) years from the date of the Equipment installation report, unless otherwise specified in the Order, to use its best efforts to ensure that the Equipment operates in accordance with the Order, without however guaranteeing that the operation of the Equipment will be uninterrupted or error-free.
11.2 The Maintenance commitment is to correct faults in the Equipment by reference to compliance with the Order. The purpose of the Maintenance Services is not to modify the purpose of the Equipment (in particular by adding functionalities) but to guarantee its operation in accordance with the Order.
In this context, IIDRE undertakes to carry out the following Maintenance:
- Maintain the Equipment in working order;
- Correcting operating anomalies in the Equipment;
- To assist the Client in restoring the Equipment to its proper operating conditions:
- Without IIDRE intervention costs to be paid by the Client if the malfunction is exclusively attributable to IIDRE;
- On the basis of an estimate previously accepted by the Client if the malfunction is not attributable to IIDRE;
- To inform the Client of any changes made to the Equipment;
The above stipulations define all of IIDRE's obligations with regard to Maintenance. Any other service or guarantee and/or remedy not expressly provided for, of any nature whatsoever, is expressly excluded.
11.3 The following services are expressly excluded from Corrective Maintenance
- The development of new programs;
- Additions or changes to existing programs;
- Training of the customer's/user's personnel;
- Backups of files and operating data;
- The correction of anomalies or malfunctions in the Equipment in the event of modification of the Equipment by anyone other than IIDRE or one of its service providers, except with the prior written agreement of IIDRE;
- Any error or negligence on the part of the Client and/or the user in the use of the Equipment;
- Any cause not directly and exclusively attributable to IIDRE and/or its Maintenance subcontractor;
- Any cause due in whole or in part to an event of force majeure.
11.4 Additional services
Any service other than those exhaustively listed in article 11.2 above may be requested from the Client as additional services to the Maintenance, subject to prior written agreement on the applicable terms and conditions, particularly but not only in terms of price.
11.5 Interventions in respect of Maintenance
IIDRE and/or the subcontractor of its choice will intervene either on its own initiative or at the request of the Client in the event of an event covered by Maintenance (Article 11.1 and 11.2 above) by notification by e-mail (contact @ iidre.com) from Monday to Friday between 8.30 am and 7.30 pm;
An IIDRE technician or any subcontractor of its choice must intervene as soon as possible to remedy the anomaly affecting the Equipment;
Maintenance is carried out remotely or on site at IIDRE's discretion depending on the nature of the fault;
Interventions by IIDRE and/or its subcontractor are carried out between 9am and 6pm on working days from Monday to Friday. If the interventions have to be carried out outside these hours or on Saturdays, Sundays or public holidays, or outside mainland France, the interventions will be invoiced in addition according to the rates in force.
ARTICLE 12 - CUSTOMER'S OBLIGATION UNDER MAINTENANCE
12.1 The Client must immediately inform IIDRE of any anomaly in the operation of the Equipment and must allow IIDRE or its subcontractor free access to the Equipment, sufficient space and the necessary assistance and in particular provide it with the operators and the system necessary for the execution of the Maintenance. If IIDRE and/or its subcontractor cannot have access to the Equipment, the time spent by IIDRE and/or its subcontractor will be invoiced in addition.
12.2 The Customer undertakes to respect the normal conditions of use of the Equipment and to strictly apply the instructions given by IIDRE and/or its subcontractor.
The Client undertakes to ensure that any installation of a new version, any revision and any intervention relating to the Equipment is entrusted exclusively to IIDRE.
ARTICLE 13 - LIABILITY
13.1 IIDRE, its contractors, subcontractors, suppliers and their respective employees and insurers may not be held liable for indirect, immaterial and/or special damage, regardless of the time, origin and cause of the damage, such as loss of profit, loss of production, loss of earnings, damage to the brand image, caused to the Client and/or to third parties.
13.2. The total and cumulative amount of compensation due by IIDRE for material damage caused to the Client during or as a result of the performance of the Order may not exceed the amount, exclusive of tax, of the sums received by IIDRE for the Equipment, Maintenance, Software or Service that gave rise to the claim.
13.3. The Customer and its insurers, for whom it is responsible, waive recourse, hold harmless and must indemnify IIDRE, its subcontractors, suppliers and their respective insurers from any claim made by third parties, beyond the limits of liability set out above in articles 13.1 and 13.2.
13.4. If the Order provides for delay or performance penalties, such penalties shall be in full discharge of the Customer's obligations and shall be exclusive of any other compensation to which the Customer may be entitled in such cases.
ARTICLE 14 CONFIDENTIALITY
14.1 Unless otherwise stipulated in the Order, the Client agrees that IIDRE's Prior Knowledge and the Results, as well as the terms of the Order, are considered confidential and undertakes not to communicate or disclose them to third parties, in whole or in part, in any form whatsoever, nor to make any copy, extract, reproduction or any form of duplication, without IIDRE's prior written consent, for any purpose other than the performance of the Order.
14.2 IIDRE undertakes not to use the Customer's Prior Knowledge for any purpose other than the performance of the Order.
14.3. The Client undertakes not to communicate IIDRE's Prior Knowledge and the Results to any members of its staff other than those whose intervention is strictly necessary for the performance of the Order and/or the use of the Equipment and/or Software, and to ensure that the said members of staff, for whom it acts as guarantor, comply with the obligations of the Order.
14.4. The Customer undertakes to return to IIDRE, at its request and without delay, or at any date or event defined in the Order, all of IIDRE's Prior Knowledge that it holds.
14.5. The Order may in no way be considered or interpreted, expressly or implicitly, as conferring on the Parties any right of ownership over the Prior Knowledge of the other Party, nor any right to use said information. Consequently, the Parties shall refrain from claiming any right whatsoever over the Prior Knowledge of the other Party and from filing any application for an intellectual property title relating to said information.
ARTICLE 15 - INTELLECTUAL PROPERTY
15.1. The Parties shall each retain ownership of their Background as well as of any Background that is generated independently of the performance of the Order after such date.
15.2. The Software is covered by the copyright provided for in articles L111-1 to L343-4 of the French Intellectual Property Code. As owner of the Software, IIDRE holds all the economic rights relating to the Software, subject to the rights of third parties. The Order does not transfer or assign the economic rights to the Software to the Customer. Consequently, the Client shall refrain from any action, any act, any operation that may infringe IIDRE's rights.
15.3 IIDRE grants the Client, within the strict framework of the operation of the Equipment, the right to execute the Software, in its executable version, i.e. the right of permanent or temporary reproduction, in whole or in part, by any means and in any form, the right of loading, displaying, executing and storing, the right to make a copy for backup purposes without the right to communicate and/or sub-license the Software to third parties.
ARTICLE 16 FORCE MAJEURE
16.1. Neither Party may be considered to be in breach of its contractual obligations insofar as this breach is due to an event beyond its control and which it cannot reasonably avoid or overcome in whole or in part, as well as in the event of natural disasters, bad weather, fire, strikes (including work stoppages occurring in the premises of IIDRE or its subcontractors or suppliers) sabotage, embargo or worsening of an embargo, interruptions or delays in transport or means of communication, acts or regulations emanating from public, civil or military authorities (including delays in obtaining authorisations or permits of any kind), war, action or failures of a subcontractor or supplier involving the postponement of delivery.
16.2. As soon as it is aware of it, the Party invoking force majeure as the cause of a default in the performance of a contractual obligation must notify the other Party in writing and the performance periods provided for are automatically extended by the duration of the event.
16.3. If the duration of the Force Majeure event exceeds six (6) months, either Party may terminate the part of the Order affected by the delay due to Force Majeure, in accordance with the terms of Clause 17.2. In such event, any Equipment completed or capable of being completed, any use of Software and/or any Services performed at the date of termination, shall be paid for by the Client.
ARTICLE 17 SUSPENSION AND TERMINATION
17.1 IIDRE shall be entitled to suspend performance or terminate the Order in accordance with the terms and conditions set out in article 15.2 in the event of non-payment by the Client on any due date. Performance may be suspended by simple registered letter with acknowledgement of receipt sent by IIDRE to the Client, until the unpaid invoice is settled and the performance deadlines are automatically extended by the duration of the Client's delay in making payment, without prejudice to any late payment penalties, the payment itself being increased by the costs incurred during the suspension and late payment interest in accordance with article 5.2.4.
If IIDRE pronounces the suspension in application of this article, this cannot be considered as a termination by IIDRE and shall not give rise to compensation for the Client.
17.2. In the event of a serious breach by one of the Parties of one of its substantial obligations, the other Party is entitled to give formal notice, by registered letter with acknowledgement of receipt, to the defaulting Party to remedy said breach. If, thirty (30) days after such notification, the defaulting Party has not undertaken to remedy the breach effectively, the other Party shall be entitled to terminate the Order by registered letter with acknowledgement of receipt. Termination shall be effective as of right fifteen (15) days after the dispatch of the aforementioned registered letter, without prejudice to any damages that the other Party may be entitled to claim as a result of the defaulting Party.
ARTICLE 18 TRANSFER OF SUBCONTRACTING
Neither Party may transfer all or part of its rights and obligations under the Order without the prior written consent of the other Party.
IIDRE reserves the right to entrust third parties with the production and/or installation of all or part of the Equipment, Maintenance, Software and/or Services.
ARTICLE 19 - APPLICABLE LAW - SETTLEMENT OF DISPUTES
The applicable law is French law.
The Parties expressly agree that any dispute arising from the interpretation, performance or non-performance of the Order, including in the event of summary proceedings or emergency proceedings, shall, in the absence of an amicable settlement or legal attribution of jurisdiction, fall within the exclusive jurisdiction of the Bordeaux Commercial Court (France).