General Terms of Sale
These General Terms of Sale are current as at 1st March 2022.
- These General Terms of Sale (hereafter referred to as the “GTS”) are proposed by the company HAWK (hereafter referred to as the “Company”), a single shareholder simplified joint-stock company under French law with a registered capital of 68,689.00 euros, registered in the Trade & Company Register of Paris under the number 795 236 868, the registered office of which is located at 81 rue des Archives, 75003 Paris, France.
- The Company proposes supplying the client (hereafter referred to as the “Client” or the “Clients”) with online advertising agency services consisting among other things of the purchasing of advertising space on the Internet by means of an auction system (hereafter referred to as the “Services”).
- The Company and the Client are hereafter referred to collectively as the “Parties” or individually as a “Party”.
- APPLICATION AND ENFORCEABILITY OF THE GTS
- The purpose of these GTS is to define all of the conditions under which the Company markets the Services offered for sale to the Clients.
They shall therefore be applicable to any order for Services (hereafter referred to as the “Order”) placed by the Client.
- The Client hereby declares that he has familiarised himself with and accepted these GTS before placing his Order.
- Confirming the Order therefore constitutes acceptance of these GTS. These terms and conditions are regularly updated, with the applicable GTS being those in force on the date the Order is placed.
- Any contrary conditions stipulated by the Client will therefore not be enforceable vis-à-vis the Company unless expressly accepted by it, regardless of the moment at which such conditions were made known to it.
- The fact that the Company chooses not to avail itself of any of the clauses of these GTS at a given moment may not be interpreted as a renunciation of its right to subsequently avail itself of any of the clauses of the said GTS.
- ORDERS FOR SERVICES
- The Services are available to any artificial person possessing the capacity to enter into commitments. The Services are reserved for professionals.
- The Services proposed by the Company are described and presented as accurately as possible. Nevertheless, the Company may not be considered liable for a minor variation in the offer or the Service(s) and this will not affect the validity of the sale.
- The Client shall inform the Company by emailing it at email@example.com of the Services he wishes to order and of any information requested by the Company, including his contact details and the details of the desired advertising campaign, (including the campaign dates, advertising format, volume, target audience, purchasing methods and budget).
- The Company will then issue a summary quotation describing the Service(s) it proposes supplying to the Client as precisely as possible (hereafter referred to as the “Quotation”).
- The Quotation presents the list of Services selected by the Client and includes any possible ancillary costs additional to the price of the Service(s) stated in the Order.
- After having viewed his Order summary on the Quotation, the Client confirms the acceptance of his Order by any means.
- After accepting the GTS and confirming the Order, including an obligation to pay, the contract is then validly established between the Company and the Client, binding them irrevocably.
- The Company will then send him an Order confirmation by any admissible means.
- PRICES AND PAYMENT TERMS FOR THE ORDER
- The prices for the Services are stated on the Quotation supplied to the Client by the Company. These are in euros and shown ex-VAT and VAT-inclusive or in another currency if necessary.
- The total sum payable is shown on the Quotation, before the Client accepts these GTS and confirms his Order. This total amount payable is shown inclusive of VAT.
- The Order for the Services should be settled in euros.
- The payment for the Order is made in accordance with the instructions provided in the Quotation.
The Order must be paid for within 30 days from the date the invoice is received. Any overdue payment will automatically lead to the application of late-payment interest set at 3 times the official interest rate, capped at the applicable usury ceiling. This official interest rate is equivalent to the interest rate applied by the European Central Bank to its most recent refinancing operations plus 10 percentage points, with the return costs and the bank remittance charges remaining at the debtor’s cost.
Additionally, fixed compensation for recovery costs totalling a minimum of 40 euros must be paid by business clients whose payments are overdue (article D.441-5 of the Commercial Code).
- The Company reserves the right to suspend or cancel the performance and/or delivery of an Order regardless of its nature and implementation status, in the case of the non-payment or partial payment of any amount owed by the Client to the Company in accordance with article 14 of these conditions.
- Additionally, in the event of the cancellation of a campaign for which Services have been ordered, solely at the Client’s initiative, no refund of the sums received up to the moment of cancellation will be issued.
- Moreover, in the event of the cancellation of a campaign for which Services have been ordered less than a week before the start date of the specified campaign, solely at the Client’s initiative, the Company will invoice the Client for 20% of the total ex-VAT amount payable as cancellation costs.
- PERFORMANCE OF THE SERVICES
- The Service(s) proposed by the Company may be supplied worldwide.
- The Company agrees to provide the Clients with the ordered Services within the deadline stated in the Order summary.
- The Client must ensure that the supplied information stated in these GTS is correct and remains so until the ordered Service(s) have been supplied in full.
The Client therefore agrees to inform the Company of any changes to its address and contact details which may occur between the placing of the Order and the provision of the Services, by sending an email to the Customer Service email address as soon as possible. Failing this, in the event of any delays and/or errors, the Client may under no circumstances consider the Company liable for a failure to supply the Service.
The Company may also not be considered liable if the failure to perform the Services results from action by a third-party outside its area of intervention.
- CUSTOMER SERVICE
- For any request for information, clarification or any complaints, the Client should contact the Company’s Customer Service Department as a priority, to enable the latter to seek to find a solution to the problem.
- The Company’s Customer Service Department may be contacted during office hours using the following contact details:
- email: firstname.lastname@example.org
- mail: 81 rue des archives, 75003 Paris, France
- THE CLIENT’S OBLIGATIONS
- The Client agrees to comply with the terms of these GTS.
- The Client is fully informed that he is subject to an obligation to ensure collaboration and cooperation with the Company, without which the Company cannot guarantee that it will be able to supply the Services in the most optimal manner possible.
- Furthermore, the Client agrees to comply with the Company’s instructions when necessary during the performance of the Services.
- If the Company considers for any reason that the Client is failing to comply with these GTS, the Company may remove his access to the website or the Services at any time at its entire discretion, and take all measures including criminal and civil legal action against him in accordance with the conditions of article 14 of this agreement.
- The Client agrees that he is only using the services for his professional use, in compliance with these GTS. The Client therefore agrees not to:
- Use the Services in any illegal manner, for any illegal purpose or in any manner incompatible with these GTS;
- Seek to obtain unauthorised access to the Company’s IT system or to carry out any disruptive activity reducing the quality or adversely affecting the performance, functions or features of the Company’s system;
- Use the Services for abusive purposes by deliberately introducing viruses or any other malware and seeking to access the Company’s IT system in an unauthorised manner;
- Denigrate the Company.
- Additionally, the Client guarantees that the Services will not be used in a manner allowing for any violation of intellectual property law or any other law or legislation, or for the circulation of content which the Company considers obscene or offensive. The Client solely assumes all liability on this point and will compensate the Company for any action taken against it on these grounds.
- The Client agrees to provide the Company with correct, high quality data and information in compliance with the applicable legislation. The Client agrees to ensure compliance with all applicable legal and statutory provisions concerning information technology, files and individual freedom.
- The Client assumes all risks related to his activities and in particular assumes sole liability for the use of the Services made available to him by the Company and for compliance with the GTS, including when the Services made available to him are used by or on behalf of third parties.
- If the Company considers for any reason that the Client is failing to comply with these GTS, the Company may remove his access to the website or the Services at any time at its entire discretion, and take all measures including criminal and civil legal action against him.
- The Company shall take all appropriate measures to ensure that it can supply the Client under optimal conditions. However, it may under no circumstances be considered liable for any non-performance or poor performance of all or part of the services covered by the contract, when this is attributable to the Client, to the unforeseeable and unavoidable actions of a third party who is not a party to the contract or to a case of force majeure. More generally, if the Company is found to be liable, it may under no circumstances agree to compensate the Client for indirect or consequential losses or those for which the existence and/or the value cannot be established by means of proof.
- In all cases, any damages payable by the Company will be limited to the amount paid by the Client to the Company.
- The Company may provide links to other websites which are not published or controlled by the Company, which may not be considered liable for the operation, content or any other elements present on or obtained via these websites.
- The provision of such links or the reference to any information, articles or services supplied by a third person cannot and must not be interpreted as an express or tacit approval by the Company of these websites and these elements or their content.
- The Company is not liable for the availability of these websites and cannot control their content or approve the advertising, the product(s) and other information circulated via these websites.
- It is hereby specified that the Company is bound only by an obligation of due diligence when providing the Services and that under no circumstances can it guarantee any success of any nature following the provision of the Services.
- The Client is fully aware of the provisions of this article including in particular the above-mentioned guarantee and liability limitations, which are all essential conditions without which the Company would never have entered into this agreement.
- FORCE MAJEURE
The Company will be freed of all commitments in cases of force majeure or acts of God. Among others, the following are considered as such: wars, riots, fires, floods, pandemics and epidemics involving the imposition of restrictions on the normal pursuit of business activities, total or partial strikes or other industrial disputes, interruption of transport services and all other causes disrupting or interrupting the provision of the Services by the Company to the Client.
The Client is informed and accepts that when required, and according to the Services, the Company may use one or several subcontractors selected carefully by it.
- LIMITED WARRANTY
THE CLIENT ACKNOWLEDGES AND ACCEPTS THAT:
HE USES THE SERVICES AND THE CONTENT AT HIS OWN RISK. THE SERVICE AND CONTENT ARE SUPPLIED “AS IS” AND AS AVAILABLE, WITH NO WARRANTY OF ANY FORM OTHER THAN THE LEGAL WARRANTY, WHETHER EXPRESS OR IMPLICIT, INCLUDING AMONG OTHERS IMPLICIT WARRANTIES OR GUARANTEES CONCERNING MERCHANTABLE QUALITY, SUITABILITY FOR A PARTICULAR USE OR NON-INFRINGEMENT.
WITHIN THE LIMITS OF THE APPLICABLE LEGISLATION, THE COMPANY PROVIDES NO GUARANTEE THAT:
(i) THE SERVICE WILL PERFECTLY MEET THE CLIENT’S NEEDS AND THAT (ii) ANY ERRORS WITH THE SOFTWARE WILL BE CORRECTED, IF THESE ERRORS DO NOT PREVENT THE SATISFACTORY PERFORMANCE OF THE SERVICES COVERED BY THIS AGREEMENT.
ANY CONTENT OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ENTIRELY AT THE CLIENT’S RISK AND THE CLIENT WILL BE CONSIDERED SOLELY LIABLE FOR ANY LOSSES OR DAMAGE CAUSED TO HIS I.T. SYSTEM OR ANY LOSS OF DATA RESULTING FROM THE DOWNLOADING OF SUCH MATERIAL. NO OPINIONS OR INFORMATION, WHETHER OBTAINED VERBALLY OR IN WRITING, OBTAINED BY THE CLIENT FROM THE SERVICE PROVIDER OR VIA THE SERVICE MAY BE CONSIDERED AS CONSTITUTING A GUARANTEE OR WARRANTY WHICH IS NOT EXPRESSLY STATED IN THE TERMS OF THE GTS.
- INTELLECTUAL PROPERTY RIGHTS
- All of the Company’s information and content are protected by copyright law, the law covering trademarks, designs and models and/or all other intellectual property rights. All of these elements are the exclusive property of the Company. All of these rights are reserved, on a worldwide basis.
- The HAWK name, brand and trademark, the logos, designs, models, stylised lettering, figurative markings and all signs used by the Company are and will remain the exclusive property of the Company.
- It is formally prohibited for the Client to reproduce (other than for his own personal and non-commercial use), publish, edit, transmit, distribute, display, remove or delete the Company’s Proprietary features or elements.
- Any use by the Client of company names, trademarks and distinctive markings belonging to the Company is strictly prohibited unless expressly agreed by the Company beforehand.
- The Client moreover authorises the Company to use its names and logos as commercial references on any medium and for the purpose of implementing this agreement, for the protection period of the intellectual property rights concerned.
- In the event of the creation of new elements concerning the Services by the Company for the benefit of the Client, the Company will transfer the intellectual property rights for these elements to the Client. This transfer will be non-exclusive and worldwide. The transfer will concern all media, for all purposes.
For all useful purposes, the Parties are reminded that the Company will therefore be authorised to continue any use of the elements thus created for all purposes, on any medium, on a worldwide basis.
These GTS will apply during the period required for the Company to perform the Services.
- TERMINATION and SUSPENSION
- Termination of the GTS
Each of the Parties may terminate these GTS if the other fails to remedy any failings vis-à-vis these terms and conditions within 30 calendar days after receiving written notice of the violation by registered letter with proof of receipt.
- Suspension of the GTS
Without prejudice to the above, the Company may also suspend the provision of the Service in the absence of payment by the Client, when the Company’s receivable is considered as due and payable.
More particularly, the Company will send a registered letter with proof of receipt to the Client informing him of the debt and inviting him to bring his account up to date within a period of seven (7) calendar days.
In the absence of payment by the Client upon expiry of this deadline, the Company will suspend its provision of the Service.
Upon payment of the agreed price, the Company will resume supplying the Service within a maximum period of 24-hours.
In all cases, the payment of the sums owed to the Company by the Client following a suspension in no way frees the Client from the need to pay any possible damages demanded by the Company.
- NON-COMPETITION CLAUSE
The Client agrees not to solicit (or to accept any direct or indirect solicitation) from the Company’s personnel or from those of any subcontractor specifically chosen by the Company during the lifetime of this agreement, with this obligation extending for two years beyond the cessation of contractual relations.
Should the Client fail to abide by this obligation, as a penalty he must pay the Company the equivalent of one year’s gross salary received by the employee concerned over the last 12 months spent in the Company’s service.
The term “Confidential Information” refers to any information, data and documents of any nature, regardless of the format, exchanged between the Company and the Client with regard to this agreement or generated in relation to the provision of the Services.
Among others, the protected information of the Company and of the Client, the content of these terms and conditions and their financial terms are all considered as Confidential Information.
The following information will not be considered as constituting Confidential Information:
- Information which was already in the public domain at the time it was communicated to the other Party, and/or;
- Information which was known to the other Party prior to being communicated and/or;
- Information which enters the public domain after being communicated to the other Party with no failings on the part of the latter vis-à-vis the Contract, and/or;
- Information provided to the other Party by a third party which was free to do as it pleased with it.
The Company and the Client each agree not to copy, reproduce or distribute to any natural or artificial person all or part of the Confidential Information which was not their own to dispose of as they see fit, and which had been communicated to them by the other Party under the terms of this agreement, without the express prior consent of the Party supplying it.
The Company and the Client will only supply the said Confidential Information to those members of their personnel and/or subcontractors or consultants with a need to know the said information for the implementation of this agreement.
If the Company and the Client consider it necessary to communicate the Confidential Information to a third-party for the sole purpose of implementing this agreement, such communication may only proceed on condition that the said third parties are subject to the above-mentioned confidentiality obligations and, with the exception of the Company’s subcontractors, that this is subject to the prior written consent of the Party concerned.
The Company and the Client agree not to use the Confidential Information for any purposes other than those provided for in this agreement.
The Company and the Client will each assume all consequences vis-à-vis the other of any violation of the confidentiality obligations mentioned in this agreement caused by themselves or one of their staff or agents.
The confidentiality obligation mentioned in this article will remain in force after the end of the GTS, notwithstanding any early termination, for a period of 5 years following the cessation of the GTS.
- APPLICABLE LAW AND JURISDICTION
- These GTS are governed and interpreted exclusively in accordance with French law, without taking account of the principles of conflicts of law.
- In the event of any dispute arising concerning the interpretation and/or implementation of these conditions or in relation to these GTS, only the Tribunal de commerce (Commercial Court) of Paris will be considered as having jurisdiction for the matter.