The present terms and conditions are up to date on August 3, 2018.
1. SCOPE OF APPLICATION OF THE GENERAL TERMS AND CONDITIONS
1.1 These General Terms and Conditions of Sale (hereinafter “T & C” or the “Contract “) are concluded between S’MYLINGUA, a simplified joint-stock company with a share capital of 100 euros registered with RCS under number 832 312 896, whose registered office is at 11, rue de Cambrai 75019 Paris (hereinafter the “Company”) and the client (hereinafter the “Client”).
The Client and the Company are individually referred to as a “Party” and collectively as the “Parties”.
1.2 They apply automatically to any sale of the following products and services, without this list being exhaustive, as well as to any other product or service offered by the Company:
– Translation services of all kinds,
– Cultural consultancy services,
– Staff recruitment consultancy services.
2. APPLICATION AND ENFORCEABILITY OF THE TERMS AND CONDITIONS
2.1 The purpose of these is to define all the conditions under which the Company markets products and services as offered for sale to customers. They therefore apply to any Order ( “Order” ) of products or services placed by the customer.
2.2 The customer declares that he has read and accepted these T&C before placing his Order.
2.3 Validation of the Order therefore constitutes acceptance of these General Terms and Conditions. These are regularly updated, the applicable T&C are those in force at the date of placing the Order.
2.4 Any condition to the contrary imposed by the client would therefore, in the absence of express acceptance, be unenforceable against the Company regardless of when it may have been brought to its attention.
2.5 The fact that the Company does not at any given time invoke any provision of these General Terms and Conditions shall not be construed as a waiver of the right to invoke any provision of these General Terms and Conditions at a later date.
3. ORDER AND EXECUTION OF SERVICES
3.1 All orders are subject to a detailed quotation from the Company, which is sent to the client (hereinafter the “Quotation” ).
3.2 This quotation includes all the information relating to the services ordered as well as their price and the deadlines of realization of the said services.
3.3 The various elements of the services offered by the Company to the Client will be specified in the Quotation.
3.4 Any Order placed and signed by the client constitutes a firm and definite commitment which cannot be called into question. Only the quotation is enforceable against the Company. Thus, only the services precisely detailed in this quotation will be carried out by the Company within the framework of the present. A request not mentioned in the Quotation shall not be binding on the Company except in the event of a new Quotation accepted by the Company and the Client.
3.5 Modification of the Order by the Customer:
Orders being final and irrevocable, any modification request made by the Client is subject to acceptance by the Company.
Modification of the Order by the company:
The Company undertakes to deliver a product or service in conformity with that ordered by the Client.
It may nevertheless make changes to the product or service ordered that are linked to technical or regulatory developments in the field concerned.
3.6 For all practical purposes, it is specified that the Company is only bound by an obligation of means with regard in particular to the provision of cultural advisory services. Finally, in general, the Company undertakes to fulfil its obligations and provide the services mentioned in the Quotation in the applicable best practices.
4. COLLABORATION OF THE PARTIES
4.1 The Client undertakes to accept any discussion with the Company when the latter considers that an exchange is necessary for the performance of the services covered by the Contract.
Generally speaking, the Client undertakes to cooperate fully with the Company in order to place it in the best possible conditions to perform the services.
In this respect, the Client acknowledges that its involvement and cooperation are necessary to ensure the proper performance of the Contract by the Company.
4.2 The Parties undertake to cooperate in order to ensure the proper performance of this Contract and in particular to communicate to each other any information, information or any other document useful for the proper performance of the Contract by the Company. The above information must be supplied as soon as possible on request.
4.3 In the event of an event likely to delay the performance of the service, the Party concerned by the event must notify the other Party without delay by any means of communication appropriate to the urgency of the situation and by registered letter with acknowledgement of receipt.
The Client may not reproach the Company for a delay in the performance of the service if it delays or refuses to communicate information essential to the performance of the services.
4.4 In the absence of cooperation between the Client and the Company, the latter may not reproach the Company for a breach in the performance of the services which are the subject of the present contract.
5. OBLIGATIONS OF THE CLIENT
5.1 Given the nature of the products and services sold and offered by the Company, the Client acknowledges and accepts that it is subject to an obligation to cooperate with the Company.
In this respect, the Client acknowledges that it is subject to an obligation of result with regard to requests addressed to it by the Company for the purpose of enabling the latter to perform the services ordered by the Client, except with regard to cultural consulting services. The cooperation of the Client with the Company is thus decisive for the proper execution of the services.
5.2 In addition, the Client must communicate and provide the Company with all information required for the proper performance of the services in order to enable it to understand its needs and requests.
5.3 The Client shall also make available any material or element likely to enable the Company to fulfil its obligations.
5.4 In addition to the above obligations, the Customer also undertakes to pay the appropriate price within the set time limits.
6.1 In the case of certain services and in particular, without this being restrictive, translation services in a language that the Company does not master, it is provided that the Company may call upon one or more subcontractors selected with choice.
6.2 Notwithstanding the foregoing and to the extent that the Company does not master the language concerned, it cannot guarantee the accuracy of the translation that would thus be carried out.
7. DELIVERY TERMS
7.1 The Company undertakes to respect the delivery time stipulated by the schedule and indicated to the Client in particular in the Quotation.
7.2 The Company undertakes to inform the Client of any event likely to have a negative impact on the delivery time of the service.
7.3 The date of receipt of the service is considered essential by the Client. The Company accepts this date as the deadline for delivery of the service and believes that the period provided for in the schedule is sufficient to complete the service.
7.4 Notwithstanding the foregoing, the Company may not be required to respect the said schedule in the event of an event of force majeure according to the definition accepted in case law and by article 1218 of the Civil Code, which would make it impossible to respect the deadlines.
7.5 Furthermore, the Client acknowledges and accepts that the deadline announced by the Company can only be met in the event of performance of the Client’s obligations and in particular the obligations concerning cooperation and collaboration between the Parties.
8. PRICE AND CONDITIONS OF PAYMENT OF THE ORDER
8.1 The prices are mentioned on the Quotation in the service descriptions, in euros and excluding tax and all taxes included.
8.2 The total amount is indicated in the summary in the Quotation, before the Customer accepts these T&C, validates his Order. This total amount is indicated in all taxes included.
8.3 The Order of products or services is payable in euros. The terms of payment will be specified by the Company on the Quotation according to each situation.
8.4 Unless special conditions apply, payments are made at the end of the month, 30 days after the end of the month. This period is calculated as follows: the 30 days are counted from the date of issue of the invoice, payment occurring at the latest at the end of the calendar month during which these 30 days expire.
8.5 The Company reserves the right to suspend or cancel any execution and/or delivery of an Order, whatever its nature and level of execution, in the event of non-payment or partial payment of any sum that would be due by the Client to the Company, in the event of an Order payment incident.
9. DELAYED PAIMENT
9.1 Any amount not paid on the due date is productive without prior formal notice of default interest equal to three times the legal rate and recovery of a lump sum of 40 euros. This legal interest rate is equal to the interest rate applied by the European Central Bank to its most recent refinancing operation plus 10 percentage points (in accordance with Article L.441-6 of the Commercial Code)
9.2 The Company reserves the right, when the agreed price is not paid on the due date, either to request execution of the sale or to cancel the Contract by simple registered letter with acknowledgement of receipt and to retain, as compensation, the deposit paid on the Order.
9.3 In addition, the Company may also decide to suspend services until payment of the price agreed between the Parties.
10. CUSTOMER SERVICE
10.1 For any request of information, clarification or for any complaint, the Customer must contact, in priority, the Company’s customer service, in order to allow the latter to try to find a solution to the problem.
10.2 The Company’s customer service is available during normal office hours using the following contact information:
Phone number : +33673588095
email : firstname.lastname@example.org
post: 11, rue de Cambrai 75019 Paris.
11. LEGALAND COMMERCIAL GUARANTEES
All services and products offered by the Company are subject to the legal guarantee of conformity provided by law, and in particular Articles L.217-4, L.217-5 and L.217-12 of the Consumer Code, and the guarantee against latent defects provided for by Articles 1641 and 1648, first paragraph, of the Civil Code:
Article L.217-4 of the Consumer Code : “The seller delivers a good in conformity with the contract and is liable for any lack of conformity existing at the time of delivery.
He shall also be liable for defects in conformity resulting from packaging, assembly instructions or installation where the latter has been placed at his expense by the contract or has been carried out under his responsibility.
Article L.217-5 of the Consumer Code : “The product is in conformity with the contract:
1° If it is fit for the use usually expected of a similar good and, where applicable :
– if it corresponds to the description given by the seller and has the qualities that the seller has presented to the buyer in the form of a sample or model;
– it has the qualities that a buyer can legitimately expect in view of the public statements made by the seller, the producer or his representative, in particular in advertising or labelling;
2° Or if it has the characteristics defined by mutual agreement between the parties or is suitable for any special use sought by the buyer, brought to the seller’s attention and which the latter has accepted”.
Article L.217-12 of the Consumer Code : “The action resulting from the lack of conformity shall be barred after two years from the delivery of the goods.
Article 1641 of the Civil Code: “The seller is bound by the guarantee in respect of hidden defects in the thing sold which make it unfit for the use for which it is intended, or which so diminish this use that the buyer would not have acquired it, or would have given only a lesser price, if he had known them.
Article 1648 of the Civil Code: “The action resulting from the redhibitory defects must be brought by the purchaser within a period of two years from the discovery of the defect.
It is specified for all practical purposes that the Company shall not be liable for any malfunction of products or services related to the use of third-party tools and software that it does not control.
12.1 The Company implements all appropriate measures to ensure the supply of products and services to the Customer under optimal conditions. However, it cannot under any circumstances be held liable for any non-performance or poor performance of all or part of the services provided for herein, which is attributable either to the Client, or to the unforeseeable and insurmountable fact of a third party outside the contract, or to a case of force majeure. More generally, if the Company were to be held liable, it could under no circumstances accept to compensate the Client for indirect damage or damage whose existence and/or quantum would not be established by proof.
12.2 The Company shall use all necessary means to provide a translation in conformity with the original version of the document or documents provided to it. However, given the very nature of the translation service, the Company cannot be held liable for claims motivated by nuances of style.
12.3 The Company shall not be held responsible for any difficulty regarding the work provided by a person who has been recruited by the Client on the basis of his headhunting service.
12.4 Notwithstanding the foregoing, the Company’s liability is in any event limited to the amount paid by the Client for the service ordered.
12.5 The Client is fully aware of the provisions of this article and in particular the above-mentioned guarantees and limitations of liability, essential conditions without which the Company would never have contracted.
13. PERSONAL DATA – SECURITY
13.1 The Company attaches great importance to respect for privacy and takes all necessary measures to ensure the confidentiality and security of Clients’ personal data.
13.2 As part of the supply, the Company collects personal data from Customers and in particular the following data:
– Mail Address
– First Name
– Last Name
– Mailing Address – Date of Birth
– Bank details
– Customer’s SIRET number,
– Customer’s phone number,
13.3 The Company collects and processes Clients’ personal data for the following purposes:
Provision of services;
Order Management ;
Information on the Client and on the Client’s activities;
Answering any questions/complaints from Clients ;
Elaboration of statistics ;
Management of requests for access, rectification and opposition rights ;
Management of unpaid debts and litigation.
13.4 The data relating to the management of the Clients’ personal data are kept for the strictly necessary period as defined by the Data Protection Act as amended, i.e. three years after the collection or the last contact with the Client.
13.5 Customers’ personal data are processed by the Company’s sales department as well as by the Company’s partner companies and subcontractors.
13.6 The Company may also communicate personal data in order to cooperate with administrative and judicial authorities.
13.7 The Company takes care to secure Customers’ personal data in an adequate and appropriate manner and has taken the necessary precautions to preserve the security and confidentiality of the data and in particular to prevent it from being distorted, damaged or communicated to unauthorised persons.
13.8 Obligations of Customers :
Customers acknowledge that the personal data disclosed by them are valid, up to date and adequate;
Customers undertake not to violate the privacy, image and protection of personal data of any third party and thus not to communicate to the Company the data of third parties without their consent.
13.9 In accordance with Decree n°2011-219 of February 25, 2011 relating to the conservation and communication of data making it possible to identify any person having contributed to the creation of a content put on line, the Customer is informed that the host of a site has the obligation to preserve during a period of one year as from the day of the creation of the contents, for each operation contributing to the creation of a content:
The connection identifier at the origin of the communication;
The identifier assigned by the information system to the content, object of the operation;
The types of protocols used for connection to the service and for content transfer;
The nature of the operation;
The date and time of the operation;
The identifier used by the author of the operation when he provided it.
13.10 In the event of termination of the Contract or closure of the account, the host must also retain for one year from the date of termination of the Contract or closure of the account the information provided at the time of subscription of a contract (Order) by the Customer or when creating an account, namely :
At the time of account creation: the login ID of this connection;
First and last name or company name;
Associated postal addresses ;
Pseudonyms used ;
Associated email or account addresses;
The password as well as the data allowing to verify or modify it, in their last updated version.
14. INTELLECTUAL PROPERTY
14.1 The Client guarantees the Company that it has all the rights and authorisations necessary for the use and exploitation of the elements provided by the Client to the Company for the performance and design of the service. In particular, the Client guarantees that all images, creations and content provided by the Client are free of rights or that the Client has obtained all required authorisations.
14.2 It is the Company’s responsibility to inform the Client, without delay and by registered letter with acknowledgement of receipt or any other means of communication, of any action or formal notice it has received in relation to one of the elements necessary for the provision of the service and provided by the Client.
14.3 In the event of proceedings brought by a third party against the Company, the Client shall bear all rights, costs, fees and damages that the Company would have to bear.
14.4 The Client remains the owner of the elements given and supplied by him to the Company.
14.5 The Company assigns and transfers the material and intellectual property relating to the elements created under the Contract and, more generally, all the preparatory design material necessary for the performance of the services.
14.6 More specifically, the Company assigns to the Client the rights of exploitation, reproduction, representation, publication, marketing and translation of the elements covered by the Contract for the entire term of protection of intellectual property rights, on any medium and by any means throughout the world.
14.7 The rights are assigned exclusively to the Client, regardless of the number of representations or reproductions, subject however to the conditions of use of certain rights acquired by the Company from third parties concerning certain elements, of which the Client is informed. The transfer is made for all countries and all languages, for all operating modes and on all current and future media, and this for the legal period in force.
14.8 Finally, it is reminded that the Company holds all rights on the terms”SMYLINGUA” as well as on the elements of its website www.smylingua.com.
By expressly giving its agreement to this end by accepting the present terms, the Client accepts that the Company may send it, at a frequency and in a form determined by the Client, a newsletter (newsletter) which may contain information relating to its activity.
16. SALES REFERENCES
For the purposes hereof, the Client expressly authorizes the Company to use its name and logo on its Internet site as well as in any commercial communication for reference purposes during the term hereof and up to 5 years thereafter worldwide and on any type of medium.
17. FORCE MAJEURE
Neither Party shall be liable for any delay or default in the performance of its contractual obligations if such delay or default is due to the occurrence of an event beyond its control which could not reasonably have been foreseen at the time the Contract was concluded and the effects of which cannot be avoided by appropriate measures.
Each Party shall inform the other Party, without delay and by registered letter with acknowledgement of receipt, of the occurrence of such a case where it considers that it is likely to jeopardize the performance of its contractual obligations.
In the event of such a case of force majeure, the execution of this Contract shall be suspended until the case of force majeure disappears, extinguishes or ceases. However, if the case of force majeure continues beyond a period of thirty (30) days, the Parties must get together to discuss a possible modification of the Contract.
The deadlines provided for in this Contract shall be automatically extended according to the duration of the case of force majeure.
In the absence of an agreement of the Parties within thirty (30) days and if the case of force majeure continues, each of the Parties shall have the right to terminate this Contract automatically, without any compensation being due by either Party, by registered letter with acknowledgement of receipt addressed to the other Party.
18.1 In the event of one of the Parties failing to fulfil one of its essential obligations, the other Party may, in the event of formal notice by registered letter with acknowledgement of receipt remaining unsuccessful, terminate the Contract automatically without any other particular formality and without prejudice to any claim for damages.
18.2 The formal notice shall specify a reasonable period within which the offending Party shall remedy the non-performance or improper performance of the essential obligation which is the subject of the formal notice. Under penalty of nullity, the formal notice must imperatively mention the present resolutory clause.
19. APPLICABLE LAW AND JURISDICTION
19.1 These T&C are governed by and interpreted in accordance with French law, without regard to principles of conflict of laws.
19.2 In the event of a dispute that may arise in connection with the interpretation and/or performance of these T&C or in relation to these T&C, the Client and the Company will make their best efforts to reach an amicable settlement of their dispute.
19.3 In the event of failure of this attempt at amicable settlement, the Parties intend to submit the dispute to the exclusive jurisdiction of the competent courts within the jurisdiction of the Paris Court of Appeal.