General terms & conditions
1/ PURPOSE AND SCOPE OF APPLICATION OF THE GENERAL TERMS AND CONDITIONS
These general terms and conditions (the “General Terms and Conditions”) apply, without restriction or reservation, to all relationships of any nature relating to the provision and performance of all Assignments carried out pursuant to the Contract between:
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the company “MUA MULTI FAMILY OFFICE”, a simplified joint-stock company (société par actions simplifiée) with a share capital of one thousand euros (€1,000.00), whose registered office is located c/o “MUA MFO FRANCE”, 19 boulevard Victor Hugo, Nice (06000, France), registered with the Nice Trade and Companies Register under number SIREN 982 761 249, and/or any Affiliated Entity (the “Service Provider”); and
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the Client (as defined below).
These General Terms and Conditions are intended to govern the relationship between the Client and the Service Provider, as formalised by the execution of the Framework Engagement Letter.
The Client declares that it has read these General Terms and Conditions and has accepted them prior to signing the Framework Engagement Letter.
However, the Client is reminded that, depending on its profile (determined on the basis of objective criteria), as well as on the nature and place of performance of the Assignments to be carried out, acceptance thereof shall be subject to the execution of a separate Mission Order to be entered into with the Service Provider.
Without prejudice to the provisions of the Framework Engagement Letter and of any Mission Order, these General Terms and Conditions are intended in particular to define the conditions and terms under which the Service Provider provides its Services to the Client.
Subject to the foregoing, the Parties expressly acknowledge that these General Terms and Conditions apply in their entirety to the Client and that, together with the Framework Engagement Letter and the Mission Orders, they constitute the essential and decisive conditions of the Service Provider’s willingness to perform the agreed Assignments.
These General Terms and Conditions shall prevail over any general terms and conditions of sale, purchase, service or use, in particular those applicable through other service distribution channels or via the Internet, as well as over any other documents issued by the Client, whatever their terms may be, irrespective of whether or not such documents have been brought to the Service Provider’s attention.
These General Terms and Conditions exclude the application of any other document issued by the Client, including, without limitation, its own general terms and conditions. They therefore prevail over any contrary provisions that may be stipulated in the Client’s general terms and conditions.
These General Terms and Conditions apply without prejudice to any other general or specific terms and conditions of the Service Provider set out on, and directly accessible via, the Website, prior to any transaction with a Client.
The execution of the Framework Engagement Letter by the Client implies the Client’s full and unconditional acceptance of and adherence to these General Terms and Conditions, as well as to any other general or specific terms and conditions of the Service Provider relating to the performance of any Assignment, which the Client acknowledges having consulted prior to any request for the performance of an Assignment.
The main characteristics of the Services provided by the Service Provider, comprising all material information required by applicable laws and regulations, are set out in particular in the Framework Engagement Letter and/or any Mission Order.
2/ DEFINITIONS
Subject to any express clause or indication to the contrary in the Contract, all terms defined or capitalised therein shall have the meaning ascribed to them below. Accordingly, the definitions set out below shall apply irrespective of whether such terms are written in upper case, lower case and/or in the singular or plural:
Activities or General Activities: means, in particular, the activities set out below, carried out or intended to be carried out, as applicable, by the Service Provider and/or the Affiliated Entity, in accordance with the laws in force in the State in whose territory such activities are or will be carried out, namely the activity of a “multi family office”, including in particular:
• advisory and service activities of a wealth-related nature relating to wealth management, business affairs and wealth structuring, including in particular estate planning and organisation, administrative and financial monitoring of assets, the preparation of studies, assistance, advice, selection and/or dissemination of information, data and advice in relation to private and professional wealth organisation, as well as legal structuring in the fields of real estate, transferable securities and wealth management, for the benefit of any natural or legal persons;
• coordination of external service providers outside the “multi family office” involved in connection with an estate, and the monitoring or assessment of their performance;
• luxury concierge services;
• assistance, support, administrative management and monitoring in the implementation of projects; or
• all or part of the activities carried out by the Affiliated Entity, under the same conditions.
Regulated Activities: means, among the Activities, any activity including, corresponding to or encompassing an Assignment whose provision or performance, by reason of its nature, its place of performance or the identity of the person responsible for its provision, is or would be, at any time, subject (i) to the obtaining and maintenance of any licence, authorisation or prior declaration of a legal, administrative, ministerial or regulatory nature, under French or foreign law, and (ii) to compliance with any mandatory and specific sectoral standard, legislation or regulation.
You / you / Client: means any natural or legal person or legal entity, or any legal arrangement such as, in particular, foundations, fiduciaries or trusts, which is directly or indirectly owned by one or more natural persons or by a family, or of which they are founders or beneficiaries, and which enters into and signs a Framework Engagement Letter and/or any Mission Order with the Service Provider and/or the Affiliated Entity – whether or not the signatory to the Contract is the beneficial owner or economic beneficiary of the person in a business relationship with the Service Provider – as well as, where applicable, the agent, representative, intermediary or partner/shareholder of such person;
General Terms and Conditions: means these general terms and conditions, in their version in force at any given time, as published on the Website.
Contract: means the Framework Engagement Letter, all its Appendices and these General Terms and Conditions, as well as, where applicable, the specifically applicable Mission Orders, the purpose of which is to define the terms and conditions applicable to the provision of Services by the Service Provider and/or the Affiliated Entity for the benefit of the Client.
Affiliated Entity: means “MUA MULTI FAMILY OFFICE”, a simplified joint-stock company (société par actions simplifiée) with a share capital of one thousand euros (€1,000.00), whose registered office is located c/o “MUA MFO FRANCE”, 19 boulevard Victor Hugo, Nice (06000, France), registered with the Nice Trade and Companies Register under number SIREN 982 761 249.
Framework Engagement Letter: means the framework agreement by which the Parties agree on the general characteristics of their contractual relationship.
Mission Order: means, unless otherwise provided in the Contract, the implementing agreement setting out the legal, technical and financial conditions, as well as the performance terms, specifically applicable to the performance of all or part of the Assignments accepted by the Service Provider, which shall be entered into between the Client and/or the Service Provider.
Party or Parties: means the Client and the Service Provider and/or the Affiliated Entity, each individually referred to as a “Party” and collectively as the “Parties”.
Service Provider / We or we: means the legal entity which enters into and signs a Framework Engagement Letter and/or any Mission Order with the Client.
Services / Services Provided / Assignments: mean the provision by the Service Provider and/or the Affiliated Entity, as part of its customary professional activities, to the Client, of all or part of the Assignments falling within the scope of the Activities which the Service Provider and/or the Affiliated Entity agrees to perform for the Client, in accordance with the laws and regulations in force, and as described, as applicable, in the Framework Engagement Letter or any Mission Order, it being specified, however, that the Service Provider is free to refuse to perform any service requested by the Client without being required to justify such refusal to the Client. The Assignments may be provided in any territory in which the Service Provider and/or the Affiliated Entity is legally authorised to carry out its own Activities.
Website: means the Service Provider’s website, accessible at the following address: https://www.mua-group.com/.
Third Party: means, excluding the Affiliated Entity, any natural or legal person other than the Client and the Service Provider under the Contract.
3/ TERM OF THE CONTRACT
Subject to the application of any contrary provisions of the Contract, these General Terms and Conditions shall apply for the entire duration of the performance of the Services defined in the Framework Engagement Letter and, as applicable, in the Mission Orders.
The Contract shall be deemed accepted by the Client when the Client delivers the Framework Engagement Letter duly signed to the Service Provider by hand, by email or by post. The Client’s acceptance shall be final and irrevocable.
Notwithstanding any contrary provision, the Service Provider shall not be obliged to commence the performance of all or part of the commitments accepted by it under the Contract unless, cumulatively, (i) the above-mentioned acceptance formalities have been completed and (ii) the Client has paid the retainer and/or the agreed advance payment, as provided for in the article “Financial Conditions” of these General Terms and Conditions.
By accepting the Contract, the Client acknowledges having read these General Terms and Conditions and accepting them without reservation or restriction. These General Terms and Conditions shall immediately and automatically extend to all past and future Services, without any further formality on the part of the Service Provider.
The Framework Engagement Letter, these General Terms and Conditions and, as applicable, the Mission Orders constitute the entire agreement between the Parties.
Upon termination of the Contract, the Service Provider shall return to the Client any document belonging to the Client and in its possession or under its control. The Service Provider may nevertheless retain a copy of any document prepared by it or any document on which its Services were based for professional record-keeping purposes, subject to the applicable laws and regulations.
4/ CONTRACTUAL DOCUMENTS AND ORDER OF PRECEDENCE
The contractual relationship between the Client and the Service Provider is governed by the Contract, which is composed of the following contractual documents:
• the Framework Engagement Letter, all its Appendices and these General Terms and Conditions of the Service Provider; and
• the Mission Orders, from the most recent to the oldest.
By way of exception to the foregoing, in view of possible developments of the Website, the Service Provider reserves the right to adapt or amend these General Terms and Conditions at any time. Consequently, the Service Provider invites the Client to consult the General Terms and Conditions prior to any request for an Assignment.
The General Terms and Conditions in force at the relevant time shall apply to all requests for Assignments made as from their date of publication online.
Accordingly, upon each amendment to the General Terms and Conditions published on the Service Provider’s Website and notified to the Client by email, all the terms of the General Terms and Conditions shall automatically apply to the Contract with the Client, without requiring any signature from the Client.
By way of exception, in the event of disagreement, the Client shall have a period of thirty (30) calendar days from receipt of the notification of amendment to notify its objection to their application by any written means recorded on a durable medium and sent to the Service Provider.
For all other documents forming the remainder of the Contract:
• any amendment to any of the contractual documents must be requested from the other Party in a sufficiently precise manner and must be made in writing in order to enable the other Party to assess the impact of the requested change on the cost and performance of the Services to be provided. Any amendment to any of the terms of the Contract shall take effect between the Parties only after execution of a written amendment signed by them. Consequently, until such change is recorded in writing, each Party shall continue to act in accordance with the latest accepted version of the Contract.
• however, where the Parties are required to amend existing contractual documents, such documents shall be signed by each Party and shall then be incorporated into the Contract as an amendment thereto. Each new version of a document thus recorded shall cancel and replace the previous one. In all cases, such amendment may only be made by a written amendment signed by each Party.
The Contract reflects the entire agreement existing between the Parties and replaces any other written or oral agreement that may have been entered into between them and that has an identical or similar purpose.
The Parties expressly acknowledge and declare that the Framework Engagement Letter and these General Terms and Conditions must be considered as constituting a global framework agreement relating to the performance of the Assignments, intended to set out their general conditions and characteristics of performance and execution, and which shall be followed, as applicable, by separate Mission Orders intended to define the legal and financial conditions specifically applicable to the performance of all or part of the Assignments accepted by the Service Provider and to the relationship of any nature maintained with the Client.
It is agreed between the Parties that the Framework Engagement Letter and these General Terms and Conditions are added to and coexist with, as applicable, any separate concurrent or future Mission Orders having an identical, similar, related or ancillary purpose, without replacing them, and vice versa.
The Parties agree that the Framework Engagement Letter, these General Terms and Conditions and the Mission Orders constitute legally autonomous and distinct instruments. They shall each apply between the relevant contracting Parties in respect of all their provisions, in accordance with their respective purposes.
Unless there is a general, full and final termination of the Contract at the initiative of the Service Provider and/or the Client, any lapse, termination, nullity or rescission of the Framework Engagement Letter, these General Terms and Conditions and/or any Mission Order, for any reason whatsoever, shall have no effect on the other acts, documents and provisions of the Contract, which shall remain fully valid and in force for their entire duration, it being specified that the clauses intended to survive termination or expiry of the Contract shall remain fully in force for their respective duration.
Any matter not expressly governed by the Framework Engagement Letter and these General Terms and Conditions in relation to the validity, interpretation, performance, termination, consequences and follow-up of any Assignment of the Service Provider shall be governed, where applicable and unless otherwise indicated, by the provisions of each successive Mission Order relating thereto and concerning the performance of one or more Assignments. Conversely, any matter not expressly governed by the successive Mission Orders in relation to the validity, interpretation, performance, termination, consequences and follow-up of the Assignment to which they relate shall be governed in accordance with the provisions of the Framework Engagement Letter and these General Terms and Conditions.
In any event, in the event of any inconsistency, incompatibility or contradiction between any provision of these General Terms and Conditions, the Framework Engagement Letter and the Mission Orders, it is agreed that the provisions of the Mission Orders shall prevail in all circumstances over the provisions of the Framework Engagement Letter, which shall themselves prevail over those of these General Terms and Conditions.
5/ DELIVERY OF SERVICES
The accepted Services are delivered or provided, as applicable, at the Client’s option, either by hand delivery, by post to the address indicated in the Framework Engagement Letter, or by email. The Client may not refuse partial deliveries.
The Service Provider undertakes to use its best efforts to provide the Services under an obligation of means and within the timeframes indicated to the Client, or, failing that, within a reasonable timeframe.
It is expressly agreed between the Parties that any timeframe indicated for the provision of the Services is given for information purposes only and is in no way guaranteed, such timeframe not constituting a strict deadline binding on the Service Provider.
The Service Provider’s liability may in no circumstances be incurred in the event of delay or suspension in the provision of the Assignment attributable to the Client, in the event of force majeure, or in the event of any cause external to the will of the Service Provider.
Upon delivery of the Services, the Client may raise reservations within forty-eight (48) hours. Failing any reservation within the aforementioned forty-eight (48) hour period, the final version of the Service shall be deemed to have been tacitly accepted by the Client.
Without prejudice to Article 13 “Confidentiality” of these General Terms and Conditions, the Client agrees that the Services shall be used only by the persons for whom they are intended and solely for the purposes for which they were prepared. The Client undertakes not to communicate any Service, copy or any other related document or information to any Third Party without the prior written consent of the Service Provider.
The Client releases the Service Provider from any liability towards any Third Party to whom the Services may have been communicated or into whose possession such Third Party may have come without the prior written consent of the Service Provider.
The Client accordingly undertakes to personally and directly bear the consequences of any kind arising therefrom and, in parallel, to fully indemnify the Service Provider against any legal, financial or tax consequence that may result from any breach of this provision attributable to the Client, even in part.
In the course of performing the Services, the Service Provider may be required to respond on an informal basis to requests or solicitations made by telephone or during meetings with the Client. Given that such responses may involve an immediate reply to a complex issue for which the Service Provider has not received complete, accurate and relevant information, the Service Provider’s liability shall not be incurred in such circumstances in connection with the provision of any Service.
The Client undertakes not to take any decision or action on the basis of such a response unless it has been confirmed in writing by the Service Provider.
The Service Provider may communicate to and submit to the Client draft documents of any kind (letters, reports or any other documents). Such drafts shall not constitute the Service Provider’s final opinion or conclusions, which shall only be included in a final report.
The Client releases the Service Provider from any liability and undertakes to fully indemnify it against any legal, financial or tax consequence that may result from any decision or failure to take a decision based on such drafts.
In the event of any change in the applicable law or in the professional standards applicable to the Service Provider that renders the performance of all or part of the Assignments impossible, more difficult or more costly, the Parties shall negotiate in good faith the conditions under which the Services will be performed by the Service Provider.
For the purposes of performing any Assignment falling within the scope of the Regulated Activities, the Client declares that it is fully informed and accepts that their performance is always subject to the following cumulative conditions, namely (i) the obtaining and maintenance of any licence, authorisation or prior declaration of a legal, administrative, ministerial or regulatory nature, under French or foreign law, and (ii) compliance with any mandatory and specifically applicable sectoral standard, legislation or regulation.
6/ OBLIGATIONS OF THE SERVICE PROVIDER
The Service Provider shall implement, under an obligation of means, all human, technical and intellectual resources at its disposal in order to carry out the Assignment entrusted to it by the Client in accordance with the instructions provided by the Client and under the conditions agreed with the Client under the Contract.
The Services provided by the Service Provider in the context of the Assignment entrusted to it are based on its best analysis of the facts, information and documents brought to its knowledge or made available to it by the Client as at the date of such Services.
The Service Provider undertakes that the quality of its Services shall comply with the provisions of the Contract and with current professional practices, and shall be based on its understanding of the applicable law, case law and regulations as at the date on which the Services are provided, taking into account the information and documents communicated by the Client for the purposes of providing the Services.
The Service Provider is subject to a general obligation of means in the performance of the Contract.
Any obligation of result is excluded from the Contract between the Parties.
The Service Provider acts under the Contract as an independent service provider, and nothing in the Contract or in the relationship between the Parties shall be construed as establishing any relationship of subordination or partnership between the Client and the Service Provider or the latter’s personnel.
The Parties expressly agree that the personnel of each Party shall, in all circumstances, remain under the hierarchical and disciplinary authority of that Party.
The Service Provider shall remain free to allocate the personnel necessary for the performance of the Contract, it being understood that such personnel of the Service Provider shall at all times remain under the hierarchical and disciplinary authority of the Service Provider, which shall, in its capacity as employer, be responsible for the administrative, accounting and social management of such personnel involved in the performance of the Contract.
The Service Provider undertakes to comply with the obligations of secrecy and confidentiality incumbent upon it under the Contract and the applicable law.
Subject to the provisions of any Mission Order and to mandatory and public policy legal or regulatory provisions applicable to the Contract, it is expressly agreed that the Service Provider owes the Client no obligation other than those expressly imposed upon it under the terms of the Contract.
Under the same conditions, the Service Provider grants the Client, in respect of the Services, no warranty other than those imposed upon it by mandatory and public policy legal or regulatory provisions under the law applicable to the relationship established between the Client and the Service Provider, as applicable, pursuant to the Framework Engagement Letter and/or the Mission Order.
7/ CLIENT’S OBLIGATIONS
The Client undertakes to make available to the Service Provider all information and documentation necessary to enable the Service Provider to perform the Services for which it is responsible, and guarantees to the Service Provider the honesty, precision, truthfulness, accuracy and completeness of the information and documents communicated to the Service Provider during the term of the Contract.
The Client undertakes to cooperate in good faith with the Service Provider so as to enable the latter to perform all Services for which it is responsible under appropriate conditions and to comply with all applicable legal and regulatory obligations under the laws of the State in whose territory it has its registered office or in which it is required to provide all or part of the Services, in particular by providing all useful information and by responding within a reasonable timeframe to the questions raised by the Service Provider.
The Client undertakes to inform the Service Provider of any change in its legal and/or financial situation which may affect the conditions for the performance of the Service Provider’s Assignments or the fees due under the Contract.
The Client undertakes to make the payments due in respect of the Services performed by the Service Provider in accordance with the timeframes and conditions defined in the Contract.
Where the Client appoints a Third Party to provide services likely to affect the performance of the Service Provider’s Services, the Client undertakes to assume responsibility for managing such Third Party and for the quality of the goods and services likely to be provided by it.
It is reiterated that the Client remains, in all circumstances, the sole decision-maker as to the appropriateness, subject matter, purpose, conditions and terms of the contracts entered into with a Third Party for the provision of services likely to affect the performance of the Service Provider’s Services. Such contracts are entered into at the Client’s sole risk and expense, and the Client alone assumes all liability and consequences arising therefrom.
The Client also declares that it shall deal, as a matter of its own responsibility and without recourse against the Service Provider, with any tax, legal or financial consequences relating to the validity, interpretation, effectiveness and performance or non-performance of any contracts entered into by it with any Third Party.
The Client shall therefore be solely responsible for complying with the contractual obligations thus undertaken, and the Service Provider may never be concerned or held liable in respect of the performance, non-performance or improper performance of the contract(s) entered into by the Client with a Third Party, whether due to the Client or the Third Party counterparty.
The Client undertakes, as essential obligations, to comply with all other undertakings binding upon it under the Contract.
8/ FINANCIAL TERMS
8.1. Fees
The various Services defined under the Contract shall be performed in consideration of the payment of fees exclusive of disbursements, determined in agreement with the Client.
Fees shall be stated in euros and shall include all Services referred to in the Contract.
In consideration for the provision of its Services, the Service Provider receives fees determined:
• at an hourly rate;
• recorded on a daily basis and invoiced to the Client monthly for payment.
The Mission Order may also provide, in addition to the hourly rate and/or in replacement thereof, for a fee:
• on a fixed-fee basis;
• as an agreed percentage of any amount saved, secured or recovered thanks to our assistance; or
• at an hourly rate derogating from the fee schedule.
8.1.1. Hourly rates
The hourly rates recorded and invoiced by default by the Service Provider as from the signature of the Framework Engagement Letter are as follows:
Nature of the Assignment : hourly Rate
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Administrative follow-up : €90.00 excl. VAT
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Coordination of professionals involved in your wealth : €150.00 excl. VAT
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Wealth-related advice : €250.00 excl. VAT
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Strategic advice relating to your wealth :€400.00 excl. VAT
These hourly rates shall apply in particular to the provision of the Services, unless expressly derogated from by a Mission Order. Hourly billing is applied in indivisible fifteen-minute increments. Fees at the hourly rate are due on the date of signature of the Framework Engagement Letter.
These hourly rates shall be reviewed annually, in the first month of each year, by publication of the updated General Terms and Conditions on the Service Provider’s website and notified to the Client by email.
8.1.2. Fixed fee
The applicable fixed fees are those stated in the Mission Order. No discount, rebate or refund shall be granted to the Client. The fees are firm and final and stated in euros (€), excluding VAT.
The Client declares that it is fully informed and accepts that the fee stated in the Mission Order covers only the Services specified in such Mission Order, it being understood that all other Services remain payable at the hourly rate. The fixed fee is due on the date the Services are taken on.
8.1.3. Success fee
The success fee is a commission indexed to all amounts awarded, saved, secured or recovered for the benefit of the Client thanks to the Service Provider’s total or partial intervention.
The success fee is due in accordance with the conditions and terms specified in the Mission Order, in particular, but not limited to, as soon as the decision to be made becomes enforceable, or on the date of signature of a settlement or any other form of agreement terminating the proceedings.
Where, for any reason whatsoever, the Service Provider has been unable to carry out its Assignment up to the achievement of the contemplated result, the Service Provider shall receive, in lieu of the success fee, fees at the hourly rate, regardless of the outcome of the transaction or procedure concerned.
8.1.4. Taxes
Where applicable, fees shall be increased by value added tax (“VAT”) at the rate in force.
8.1.5. Disbursements – case and administrative expenses
Fees do not include costs and disbursements paid for the purposes of performing the Assignment. They are invoiced in addition to fees, at their actual cost and without margin, and are detailed in the invoices issued by the Service Provider. Unless the Client has given its express prior consent, no significant advance of costs and disbursements shall be made on the Client’s behalf (including, in particular, expert fees, bailiff fees, registration or transfer duties, signature authentication, apostille or legalisation, etc.).
In addition, certain Assignments may entail travel which may not have been mentioned in the Framework Engagement Letter.
Accordingly, all costs not expressly included in the fees referred to above, incurred by the Service Provider and arising from the performance of the Services, shall be re-invoiced to the Client, who accepts them in full and without reservation under these General Terms and Conditions.
The costs, disbursements and other travel or accommodation expenses incurred by the Service Provider in performing the Assignments may, as applicable, be subject to VAT where VAT is applicable.
The Client declares that it is fully informed and accepts that, in addition to the Service Provider’s fees, the onboarding of the Client, the management, filing, collection of information, updating and retention of its file shall give rise to the payment of fixed case and administrative fees invoiced upon signature of the Framework Engagement Letter and then once (1) per calendar year during the relationship with the Client.
The amount and payment terms of these fixed case and administrative fees are indicated in the Framework Engagement Letter.
8.2. Invoicing – Payment
8.2.1. Retainer
Upon signature of the Framework Engagement Letter and/or a Mission Order, the Service Provider shall send an advance request in respect of the costs and fees to be incurred by the Service Provider in connection with the requested Assignments.
The amount and payment terms of such retainer are indicated in the Framework Engagement Letter.
8.2.2. Advance payment
Upon signature of a Mission Order, the Service Provider shall send the Client an advance invoice corresponding to fifty per cent (50.00%) of the amount of the fees indicated and/or estimated. The amount and payment terms of the advance payment are indicated in the Framework Engagement Letter. Bank charges relating to payment of the advance payment are entirely borne by the Client.
8.2.3. Payment terms
Fees, costs and disbursements are invoiced periodically. They are payable in full upon receipt of the invoice, by direct debit mandate or by bank transfer to the details shown at the bottom of the invoice. Bank charges relating to payment are entirely borne by the Client.
The Client agrees to receive invoices electronically.
8.2.4. Late payment
In accordance with the applicable regulations and these General Terms and Conditions, any fee due in respect of the provision of the ordered Services is payable in accordance with the forms and timeframes set out herein, as specified on the invoice sent to the Client.
In the event of late payment of any amount due by the Client on the due date or beyond the prescribed period as shown on the invoice sent to the Client, the Client shall, without prejudice to the application of any penalties, be liable for late-payment interest on the VAT-inclusive amount of the sum due, at a rate equal to three (3) times the annual statutory interest rate as published in the Journal Officiel. Such interest shall accrue automatically and as of right to the Service Provider, without any formality or prior formal notice.
In the event of non-payment or late payment, the Service Provider may, without delay and at its discretion:
• continue to provide the Services, it being specified that the hours spent by the Service Provider in providing the Assignments performed in the event of the Client’s late payment shall be added to and cumulated with the fees already due by the Client, in addition to any late-payment interest applicable under this clause; or
• suspend or cease the performance of the Services, whether accepted or not, under the conditions provided for by the applicable law and detailed below, without notice or other formality, until effective receipt of all fees and sums due by the Client under the Contract, such suspension or cessation by the Service Provider not being deemed wrongful or attributable to it. It may also, under the same conditions, suspend performance of its other obligations under the Contract.
The calculation of such late-payment interest shall begin on the day following receipt of the invoice and shall end on the date on which the amount due is paid, including all accumulated late-payment interest, by the Client’s bank. Such interest shall be calculated on a daily basis. Such interest shall be payable upon receipt of a specific invoice issued by the Service Provider and payable upon receipt of the corresponding email.
Such late-payment interest shall be due by the Client to the Service Provider without prejudice to the Service Provider’s right to seek reimbursement from the Client of any costs, duties, taxes and amounts incurred for the recovery of its claim or its right to bring liability proceedings against the Client to seek an award of damages, specific performance of any undertaking by the Client, as well as the cessation of any manifestly unlawful disturbance.
As a guarantee, the Service Provider reserves the right to require the Client to pay any sum due but not yet payable, as well as to put in place any guarantee, security or other personal undertaking deemed necessary by the Service Provider as security for its rights.
No set-off of any kind may take place or be claimed by the Client between the sums owed by it and any sum potentially owed, conversely, by the Service Provider.
8.2.5. Non-payment
The agreed payment dates may not be deferred for any reason whatsoever, including in the event of a dispute. Any sum not paid when due shall give rise, as of right and without formal notice, to the application of late-payment penalties calculated at a rate equal to three (3) times the statutory interest rate, without such penalty affecting the enforceability of the principal sums due.
In addition, any late payment shall result in:
• invoicing of a fixed recovery costs indemnity to the defaulting Client in the amount of forty euros (€40.00) for each invoice not paid when due, it being specified that where the amicable and/or judicial recovery costs (including, without limitation, all court costs, procedural costs, lawyers’ and advisers’ fees, judicial officers’ fees, as well as all costs, duties and expenses for drafting and sending instruments) actually incurred by the Service Provider exceed the amount of the aforementioned fixed indemnity, the Service Provider may require the Client to pay additional compensation, provided that the Service Provider can evidence such costs;
• immediate payment of all remaining sums due, whatever the agreed timeframes, increased by an indemnity of twenty per cent (20.00%) of the amount by way of a penalty clause; and
• the possibility for the Service Provider to terminate the Contract unilaterally at the Client’s sole fault.
In addition, fifteen (15) calendar days (including Saturdays and Sundays) after receipt by the Client of a formal notice remaining without effect requiring it to pay the fees due, the Client undertakes not to use the Service for any purpose whatsoever. In the event of breach of this provision by the Client, the Client shall as of right be liable to the Service Provider for a separate fixed indemnity of ten thousand euros (€10,000.00), without prejudice to any other interest and penalties due to the Service Provider under these General Terms and Conditions.
This penalty clause constitutes a minimum fixed amount, which shall avoid affecting the Service Provider’s right to obtain compensation for the entire loss suffered by it where such loss exceeds the fixed amount of the above penalty clause and/or to bring any legal action to put an end to any disturbance or action that is manifestly unlawful or in breach of the above undertakings (without prejudice to the right to seek an injunction, specific performance or any other interim measure in the event of established non-performance or threatened non-performance of the provisions of the Contract).
9/ LIABILITY
For the purposes of this article, the definitions below shall apply irrespective of whether the terms are written in upper case, lower case and/or in the singular or plural:
-Personal Injury: Any physical, psychological or moral injury suffered by a person, including food poisoning.
-Non-Material Damage: Any loss or damage other than Personal Injury or Material Damage, and in particular losses such as: loss of enjoyment, interruption of a service provided, immobilisation, loss of production, loss of profit, loss of customers and additional costs.
-Material Damage: Any deterioration, alteration, seizure, confiscation, loss, disappearance or destruction of an item or substance, or any physical injury to animals, or any theft of property, whatever the cause.
-Damaging Event: An event which constitutes the originating cause of the damage; a series of Damaging Events, whether actual or alleged, having the same technical cause, shall be deemed to constitute a single Damaging Event.
-Professional Fault: Any wrongful act, whether actual or alleged, committed in the course of the Services provided, including any: (a) error of fact or law, (b) omission, failure, oversight, negligence, imprudence, non-compliance or inaccurate statement, (c) breach of legal, regulatory, administrative and/or statutory provisions.
9.1. Nature of the Service Provider’s Obligations
The Service Provider and/or the Affiliated Entity undertakes to exercise due care and the diligence necessary to provide Services of a quality compliant with the specifications of these General Terms and Conditions, with the conditions set out in the Framework Engagement Letter and, where applicable, in any Mission Order. The Service Provider is subject only to an obligation of means in respect of the Services covered by the Contract. The Services are performed in a given context specific to the Client. The Service Provider’s liability may not be incurred as a result of the Client’s use of the Services, or of the outcome of the Services, in a manner different from that initially stated or otherwise authorised by the Client when the Contract was entered into, or otherwise authorised by the Service Provider.
9.2. Force majeure – Client’s Fault
The Service Provider shall not incur liability in the event of force majeure or of any fault or other breach by the Client, as defined in this article:
9.2.1. Force majeure
The Parties may not be held liable if the non-performance or delay in the performance of any of their obligations, as described in these General Terms and Conditions, results from an event of force majeure, within the meaning of Article 1218 of the French Civil Code, or from exceptional health or climatic contingencies beyond the Parties’ control as described below, which are such as to cause the temporary suspension, limitation or impossibility of performing or continuing the performance of the Services.
In particular, the following shall be considered as an event of force majeure enforceable against the Client, by way of indication and without limitation: any impediment, limitation, computer display issue, bug, IT failure, disruption resulting from fire, epidemic, explosion, earthquake, collapse of installations, flood, power outage, war, embargo, law/regulation, injunction, request or requirement from any government or administrative authority of any kind, requisition, strike, boycott, or any other circumstance beyond the Service Provider’s reasonable control.
The Service Provider shall promptly notify the Client, by registered letter with acknowledgement of receipt or by email, of its impediment or inability to perform its Assignment, without being required to justify it other than by notifying the occurrence of a force majeure event. The suspension of obligations may in no case give rise to liability for non-performance of the obligation concerned, nor result in the payment of damages or late penalties.
Performance of the Assignment shall be suspended for the duration of the force majeure event if it is temporary and does not exceed a period of ninety (90) calendar days following the sending by the Service Provider of the notification referred to above. Accordingly, once the cause of suspension has ceased, the Service Provider shall use its best efforts to resume normal performance of its contractual obligations as soon as possible and to minimise the adverse consequences resulting from the occurrence of any force majeure event under this clause.
The Service Provider shall notify the Client, under the same conditions, of the resumption of its obligation by registered letter with acknowledgement of receipt or by email.
If the impediment is or becomes definitive or exceeds a period of ninety (90) calendar days, the Contract shall, unless otherwise agreed by the Parties, be automatically terminated upon expiry of that period in accordance with the terms set out in Article 11 “SUSPENSION – INTERRUPTION – TERMINATION” hereof.
The Service Provider may not be held liable where the non-performance or delay in the performance of any of its Assignments or obligations results from an event of force majeure.
9.2.2. Client’s Fault
For the purposes of these General Terms and Conditions, any misuse of the Services, fault, negligence, omission or failure by the Client or its agents, or failure to comply with the recommendations given by the Service Provider, shall be deemed to constitute a fault of the Client enforceable against it. Accordingly, the professional liability of the Service Provider or of any person practising within it may not be incurred by the Client in the event of the Client’s fault. In addition, the Service Provider’s liability is excluded where the Client has not provided the information or documents necessary for the performance of the Assignment, or has provided them late, or has provided incomplete or erroneous information and documents. The Service Provider has no obligation to verify or cause to be independently verified the information or documents provided by the Client.
Moreover, the Service Provider may not be held liable for any damage or loss whatsoever in the event that the Client uses any of its services, work product, recommendations or opinions in a different context or for a purpose other than that for which such service, work product, recommendation or opinion was performed or given.
Neither the Service Provider nor any of its members shall incur liability in respect of any use by a Third Party of any Services, work product, recommendations or opinions performed or given by the Service Provider in the context of the Assignment performed for the Client.
9.3. Incurrence of liability
The Service Provider’s liability may only be incurred in the event of established professional fault attributable to it which has caused the Client actual, personal, direct and certain loss, subject to the following terms and limitations (to the exclusion of any potential, hypothetical or indirect loss, any loss of opportunity and any consequential loss):
The Service Provider shall in no case be liable for non-material damage, whether consequential or non-consequential, arising from personal injury and/or material damage, such as, by way of non-exhaustive example: any financial or commercial loss, depreciation of assets, loss of profit, loss of income or opportunity, loss of business, business interruption, loss of information or data, damage to reputation, commercial disturbance, loss of earnings, losses suffered by a third party, irrespective of whether such losses were reasonably foreseeable or not, and whether arising from or resulting from the Contract.
The Service Provider may not be held liable in the event of any change in the law, regulations or their interpretation occurring after the date of performance of the Services.
The Service Provider may not be held liable for any depreciation of assets entrusted by the Client for management purposes.
The Service Provider may not be held liable for carrying out its professional activity via the internet, intranet, extranet and/or via the Service Provider’s website or web address, or through the transmission of emails or electronic documents.
The Service Provider may not be held liable for any IT failure (outage, bug, error, etc.) in the exercise of its professional activity and in particular, but not limited to, in connection with the transmission of its Services by email. Consequently, the Client expressly acknowledges that the Service Provider has no control over the capacity, reliability, access to or security of the aforementioned emails.
The Service Provider is responsible only for the tasks expressly assigned to it under the Contract. It may not, for example, be held liable in any way for the use made by the Client or any third party of the results of its Services.
The Service Provider shall in no case be liable for damages based on or arising from any claim for plagiarism, illegal access, unlawful appropriation or infringement of copyright, patent, trade mark, trade name, industrial secret, computer program, or any breach of laws relating to industrial or commercial property.
The Service Provider shall in no case be liable for damages seeking compensation for any personal injury, illness, psychological or mental disorders, death, or any loss, damage or destruction of any property, including loss of enjoyment and/or use of such property or breach of the right to respect for private life. This exclusion shall not apply to claims seeking compensation for any non-pecuniary loss in the context of a claim relating to employment relations. The Service Provider shall in no case be liable for damages based on or arising from any loss of value (or absence of increase in value) of any investment, including any security, currency, fiat money, options, futures transactions, commodities, property or any other thing or asset having value, or resulting from statements, advice, assurances or guarantees actually or allegedly provided by or on behalf of the insured relating to the performance of such investment, or resulting from the partial or total loss of value of a product or service provided in that context.
To the extent that the Client demonstrates that it has suffered actual, direct, personal and certain damage, the Service Provider’s liability is expressly limited as follows:
• for Contracts in respect of which the net amount (excluding VAT) received is less than five thousand euros (€5,000.00), the Service Provider’s aggregate liability shall not exceed ten per cent (10.00%) of the net amount (excluding VAT) received by the Service Provider; and
• for Contracts in respect of which the net amount (excluding VAT) received is more than five thousand euros (€5,000.00), the Service Provider’s aggregate liability shall not exceed five per cent (5.00%) of the net amount (excluding VAT) received by the Service Provider.
Finally, no liability claim may be brought by the Client against the Service Provider more than one (1) year after the start date of the provision of the relevant Services, failing which the claim shall be time-barred definitively and irrevocably.
In any event, and without prejudice to any other provision whose purpose or effect is to limit the Service Provider’s liability, the Service Provider may neither be the subject of any claim nor be held liable for consequences of any kind resulting from any of the following events:
• any breach by the Client of the provisions of the Contract;
• the adverse consequences of any product or service of any kind provided to the Client by a third party;
• adverse consequences resulting from a decision, failure to decide, act or faulty or erroneous implementation by the Client of any recommendation, advice or reservation issued by the Service Provider in the context of its Assignments or as a result thereof.
Any limitation of liability or exclusion of liability clause in favour of the Service Provider contained in any other instrument or document forming part of the Contract shall apply as of right to this Contract if it is more favourable to the Service Provider.
9.4. Waiver of recourse
In any event, the Client waives any right of recourse against the Service Provider in the following cases:
• The Client bears the risk of accidents that may occur to the personnel it employs, whatever the cause. The Client waives any recourse against the Service Provider for any personal injury or death of its personnel, subject to the rights of the persons concerned or their heirs and those of the social security authorities or any similar body in a foreign country.
• The Client bears the risk of damage to or loss of property belonging to it and/or which it leases and/or which has been entrusted to it, and more generally everything located on its premises (personal or professional) or under its custody. The Client waives any recourse against the Service Provider in respect of any material damage affecting such property.
• The Client waives any right of recourse against the Service Provider for non-material damage, whether consequential or non-consequential, arising from personal injury and/or material damage, such as, by way of non-exhaustive example: any financial or commercial loss, depreciation of assets, loss of profit, loss of assets, loss of production, loss of income or opportunity, loss of business, damage to reputation, commercial disturbance, loss of earnings, losses suffered by a third party, irrespective of whether such losses were reasonably foreseeable or not, arising from or resulting from the Contract, even if they result from professional fault of the Service Provider or the personnel for whom it is responsible.
Each Party shall bear in full all direct or indirect pecuniary consequences of the civil liability under ordinary law which it incurs, by reason of any bodily or material accidents caused to third parties to the contract between the Client and the Service Provider in the exercise of its duties under the Contract. The Client undertakes to ensure that these waivers of recourse are applied to its subcontractors; if necessary, a waiver of recourse shall be signed.
10/ INSURANCE
The Parties undertake, with regard to their personnel and everything located on their premises (personal or professional) or under their custody, to have taken out civil liability insurance and to have subscribed to, and to maintain in force, all compulsory insurance policies in accordance with the applicable laws and regulations.
Notwithstanding the Service Provider’s involvement, the Client undertakes to take out all compulsory insurance with a company of established solvency to cover all risks incurred by reason of its obligations under the Contract, so that the Service Provider may never be challenged or pursued on that basis, it being specified that the Client shall be solely responsible for such insurance and irrevocably undertakes to indemnify the Service Provider should its liability be sought.
11/ SUSPENSION – INTERRUPTION – TERMINATION
11.1 The Client has the right to terminate at any time in writing the Assignment entrusted to the Service Provider, subject to settlement of the invoices in accordance with the provisions below.
11.2 In the event of non-payment of fee and expense invoices within the timeframes stipulated in these General Terms and Conditions, the Service Provider reserves the right to suspend performance of the Contract, and shall inform the Client thereof.
11.3 The Service Provider may terminate its Assignment, in particular where the Client has engaged a Third Party to perform the same Services, or where the engagement of such Third Party is, or may be, a source of conflict of interest for the Service Provider, or by reason of a fault of the Client or any other event as defined herein and in accordance with the applicable legislation.
11.4 In the event of a breach by either Party of its obligations under the Contract, which has not been remedied within thirty (30) calendar days (including Saturdays and Sundays) from receipt of the registered letter with acknowledgement of receipt notifying the breaches in question, the other Party may, as of right, invoke termination of the Contract, without prejudice to any damages to which it may be entitled as a result of such breaches and/or any other rights and remedies under this Contract.
In the event of personal bankruptcy and/or a declaration of cessation of payments, or of judicial reorganisation or judicial liquidation, the Contract shall be automatically terminated in accordance with the conditions provided for by the applicable law.
In the event of termination of the Contract for any reason whatsoever, all sums invoiced to the Client by the Service Provider prior to the effective date of such termination shall remain due.
In the event of early termination of the Contract at the initiative of the Client and/or of the Service Provider for any cause attributable to the Client, or for a legal cause, such as a breach by the Client of the law or regulations in any jurisdiction, the Client shall pay to the Service Provider all amounts, sums and fees of any kind which would have been received by the Service Provider had the Contract been performed until its term, under the following conditions.
In such case, the following sums, costs and fees shall be fully and irrevocably due by the Client to the Service Provider, namely:
• the amount of Services invoiced and remaining unpaid on the effective date of the early termination;
• where any Assignment is remunerated other than on the basis of an hourly rate, the amount of fees of any kind agreed for the Assignments not yet performed up to their completion date at the effective date of the early termination, whether or not already invoiced to the Client;
• where any Assignment is remunerated on the basis of an hourly rate, all sums and fees which would have been received by the Service Provider had the Contract been performed until its term, whether or not already invoiced to the Client; and
• all costs incurred or expended by the Service Provider in performing its Assignments up to the effective date of the early termination.
11.5 In all cases of suspension, interruption or termination, the Client remains obliged to pay for all Services rendered by the Service Provider, as well as the costs and disbursements paid on its behalf, prior to notification of the suspension, interruption or termination.
11.6 Unless otherwise provided in the Contract, it shall enter into force upon signature or, as applicable, on the date stated in the Framework Engagement Letter and shall produce all its effects, unless otherwise provided, until completion of the Assignments referred to therein, except in the event of early termination or rescission. All provisions of the Contract which, by their wording or nature, are intended to survive its expiry, termination or rescission shall remain fully valid and enforceable between the Parties for the duration provided for that purpose.
12/ INTELLECTUAL PROPERTY – EXCLUSIVITY
The Service Provider holds all moral and economic rights in and to all the Services. In any event, the Service Provider retains ownership of the methods, know-how and processes developed or implemented by the Service Provider in order to perform the Services.
The Service Provider may freely use them for the benefit of third parties, in particular other Clients.
The Service Provider grants the Client, on a non-exclusive basis, a personal and non-transferable right of use of the documents produced by the Service Provider in performance of the Contract and of any service, strictly limited to the Client’s own needs and to the purpose of use as resulting from the Engagement Letter. Accordingly, in any event, the Client may use the outcome of the Services only for its own needs and for the purpose of use as resulting from the Framework Engagement Letter or the Contract.
Each Party retains ownership of the intellectual property belonging to it prior to the effective date of the Contract.
Unless otherwise provided, the Service Provider remains the owner of the results of the Services (including, without limitation, documents, studies, etc.) made available to the Client by the Service Provider in the context of performance of the Contract. All related rights are and shall remain vested in the Service Provider.
The Client shall refrain from making the elements available to third parties, directly or indirectly, whether for consideration or free of charge, in any form whatsoever and for any reason whatsoever.
The Client undertakes, for the duration of the Contract, not to use or mention any of the Service Provider’s identifying elements (such as logo, corporate name or trade name, designation, trade mark, etc.) without the Service Provider’s prior written consent. However, for the purposes of performing its Assignments, the Service Provider shall be entitled to use or mention any of the Client’s identifying elements, in particular where the Client is a company or commercial entity, by way of reference, together with, where applicable, an explanatory description.
13/ CONFIDENTIALITY
Subject to any contrary legal or regulatory provision applicable to all or part of the Contract in relation to anti-money laundering and counter-terrorist financing, professional secrecy and confidentiality, all documents and information collected by the Service Provider in the course of performing its Assignment are strictly confidential. They may be disclosed internally or to third parties only under the conditions provided for by such rules, or where such disclosure is required for the proper performance of the Services, or as a result of legal, accounting or regulatory obligations beyond the control of, or binding upon, the Party receiving the information.
All information and documents, irrespective of their nature or medium, communicated by one Party to the other before or after the effective date of the Contract, shall always be considered confidential information and may be used solely for the purposes of the Contract. Each Party undertakes to treat such information and documents with the utmost confidentiality. Subject to the foregoing, none of such information, including, in particular, the existence and terms of the Contract, may be disclosed to third parties by the receiving Party, or by its agents or employees, without the prior written consent of the other Party. The provisions of this Article shall survive the expiry, rescission or termination of the Contract, for any reason whatsoever, for a period of five (5) years from the date of such event.
The Parties undertake to take all necessary measures to ensure that their personnel, subcontractors and suppliers comply with the confidentiality obligations described above.
The Service Provider shall not, under any circumstances, be held liable for any damage, cost or loss caused by the loss, delay, theft, fraudulent acquisition, misappropriation or alteration of any confidential information, any correspondence (paper or electronic), or any document transmitted by or to the Client, resulting from any breach by the Client of this provision.
Each Party further undertakes to immediately notify the other of any failure to perform, disregard or breach of any of the provisions of this Article and to take all measures at its disposal to put an end to such failure or to minimise its consequences of any nature.
Subject to any contrary legal or regulatory provision applicable to all or part of the Contract in relation to anti-money laundering and counter-terrorist financing, professional secrecy and confidentiality, all documents, regardless of the medium used, containing Confidential Information communicated by the Client to the Service Provider shall be returned without delay upon expiry or termination of the Contract, with no copy being retained, except for documents, information and copies, regardless of their form, required to enable the Company to comply with its legal, regulatory and professional compliance obligations.
The Client expressly and irrevocably authorises the Service Provider to share all or part of the confidential documents and information with the Affiliated Entity or any other legal entity within the Service Provider’s group of companies for the purposes of (i) enabling them to have a global and up-to-date view of the Client and to best meet its expectations, (ii) complying, where necessary, with applicable laws, regulations or any other provisions (in particular in insurance, banking and financial matters) and/or responding to the requirements of supervisory or administrative and public authorities, and (iii) carrying out studies or drafting any type of contracts or transactions (in particular marketing and commercial) in compliance with personal data protection regulations.
14/ LEGISLATION RELATING TO THE FIGHT AGAINST MONEY LAUNDERING, TERRORIST FINANCING AND INTERNATIONAL FINANCIAL SANCTIONS
The Client expressly acknowledges that, due to the nature of the Activities carried out respectively by the Service Provider and/or the Affiliated Entity, the establishment of the business relationship with the Client and the subsequent provision of all or part of the Assignments during the term of the Contract shall be subject to compliance with all obligations, in particular obligations of detection, identification, assessment, understanding and reporting aimed at combating potentially illicit transactions, in matters relating to anti-money laundering, terrorist financing and/or compliance with national, regional or international financial sanctions, as resulting in particular from European regulations in force at any given time as well as national laws and regulations, of French or foreign origin, and from decisions taken by any public, institutional, professional or administrative authority (the “AML Standards”).
For the purposes of compliance with the applicable AML Standards, the procedure described in this Article shall apply to any business relationship with the Client, irrespective of the Assignment entrusted to the Service Provider.
Any document and/or information collected pursuant to this Article shall be kept in the file maintained by the Service Provider for the Client. The security and confidentiality of the information and documents thus transmitted shall be ensured in accordance with the Contract and the applicable AML Standards.
14.1. Obligations prior to entering into a business relationship
Prior to entering into any business relationship, it shall be the responsibility of the Service Provider:
• to identify and verify the identity of the Client and, where applicable, that of its representatives, corporate officers, partners/shareholders and/or beneficial or ultimate owners;
• to collect information relating to the purpose and nature of the business relationship formalised by the Contract and any other information deemed relevant or necessary by the Service Provider for the purposes of complying with the AML Standards.
In this respect, the Client undertakes to provide, at the Service Provider’s first request, all information, documents and/or supporting evidence required, the details of which are set out in Appendices 1 and 2 to the Framework Engagement Letter.
The list of documents set out in Appendices 1 and 2 to the Framework Engagement Letter is provided for indicative purposes only, and the Service Provider reserves the right, prior to entering into any business relationship, to require from the Client any other documents or information deemed relevant or necessary by the Service Provider for the purposes of compliance with the AML Standards.
If the Client, or where applicable its representative(s) or agent(s), is or are unable to provide the information and/or documentation requested by the Service Provider in order to comply with its due diligence obligations, the Service Provider shall be entitled, at its discretion, to refuse to enter into a business relationship, to perform or process a transaction, or to provide a Service requested by the Client, without incurring any liability towards the Client.
Notwithstanding any contrary provision of these General Terms and Conditions, all documents and information transmitted to the Service Provider for the purposes of compliance with the AML Standards shall be retained for the entire duration of the Services and, as applicable, following (i) completion of the Assignments or, in other cases, (ii) termination of the Contract and/or the business relationship, in the broadest forms and for the longest periods permitted by the applicable AML Standards.
If the Client, or where applicable its representative(s) or agent(s), is or are unable to provide the information and/or documentation requested by the Service Provider in order to comply with its due diligence obligations, the Service Provider shall be entitled, at its discretion, to refuse to enter into a business relationship, to perform or process a transaction, or to provide a Service requested by the Client, without incurring any liability towards the Client.
Notwithstanding any contrary provision of these General Terms and Conditions, all documents and information transmitted to the Service Provider for the purposes of compliance with the AML Standards shall be retained for the entire duration of the Services and, as applicable, following (i) completion of the Assignments or, in other cases, (ii) termination of the Contract and/or the business relationship, in the broadest forms and for the longest periods permitted by the applicable AML Standards.
14.2. Obligations during the business relationship
Notwithstanding the term of the Contract, throughout the duration of the business relationship and in accordance with the AML Standards, the Service Provider undertakes to maintain and update its knowledge of the Client, in particular for the purposes of complying with its ongoing due diligence obligations.
To this end, the Client expressly undertakes to provide without delay any document or information of any nature required by the Service Provider and to comply with any documentary request issued by the Service Provider in order to enable it to comply with the AML Standards throughout the term of the Contract.
The Client expressly undertakes, as an obligation of result, to provide within the required timeframes only truthful, complete and accurate information and documents, on the basis of which the Service Provider will be required to provide its Services. The Service Provider shall not, under any circumstances, be held liable for the consequences of any error, incompleteness, omission or fraudulent or dishonest nature of the information and documents transmitted by the Client under the Contract.
Without prejudice to the foregoing, throughout the duration of the business relationship, the Client undertakes to inform the Service Provider without delay of any change affecting the information or supporting documents previously provided (for example, any change relating to its identity, principal place of residence, profession, etc.) necessary or useful to enable the Service Provider to comply with its obligations under the AML Standards.
The Service Provider reserves the right to carry out any examination of any nature in respect of transactions carried out by the Client or Assignments requested by the Client. In this respect, the Service Provider may, in the presence of such transactions or Assignments, in particular where they appear inconsistent, suspicious, unusual or particularly complex, request information from the Client regarding the origin and/or destination of the funds, the purpose and nature of the transaction concerned and/or the identity of the person benefiting therefrom.
In the absence of communication by the Client or cooperation on its part within the forms and timeframes specified above, the Service Provider reserves the discretionary right not to carry out transactions, not to commence or begin the provision of all or part of the Assignments, as well as to refuse to perform, suspend, cease or cancel any Assignment initiated for the Client, or to terminate the Contract and render immediately payable all sums due by the Client under the Contract, all without incurring any liability of any kind whatsoever towards the Client.
15/ PERSONAL DATA PROTECTION, COOKIES AND OTHER TRACKING TECHNOLOGIES
The Client expressly acknowledges that, due to the nature of the Activities carried out respectively by the Service Provider and/or the Affiliated Entity, the conclusion of the Contract with the Client and the subsequent provision of all or part of the Assignments during the term of the Contract may give rise to the collection, processing, transfer and storage of certain data or information relating to the Client, constituting personal data (or any other applicable qualification).
For the purposes of the Contract, the Parties recall that the Service Provider acts as data controller.
The personal data collected varies depending on the nature of the Services to be provided, the Client’s profile (established on the basis of objective criteria), and the manner in which the Services are provided. The personal data collected or held are either provided directly by the Client or originate from third parties.
In this respect, the Parties acknowledge that any collection, processing, storage, generation and transmission of personal data shall be governed by the general terms of use of the Website and/or the Service Provider’s privacy policy, accessible on the Website, which form an integral part of this Contract, or, failing that, by these General Terms and Conditions.
The Parties shall comply with their respective obligations under any applicable personal data protection law or regulation, including, where applicable, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and/or French Law No. 78-17 of 6 January 1978 relating to data processing, files and individual liberties, and/or Law No. 1.165 of 23 December 1993 and its amendments and ordinances relating to the processing and protection of personal data, in each case as in force from time to time, as well as any implementing provisions adopted pursuant thereto as in force on the date of conclusion of the Contract.
The Service Provider collects and processes personal data relating to Clients, in particular for the following purposes:
• legal, accounting and administrative management of client files;
• prospecting, production, management and follow-up of requests and files relating to clients and prospects;
• drafting of instruments on behalf of the Client;
• legal, accounting (including invoicing) and administrative management of client files;
• management of the business relationship, conclusion and performance of the Contract and provision of the Services for the benefit of the Client;
• management of disputes and litigation with the Client;
• identification of Clients in connection with legal obligations relating to the fight against money laundering, terrorist financing and corruption;
• management of professional electronic messaging;
• conduct of statistical and marketing studies, as well as commercial solicitations, in compliance with applicable legal and regulatory provisions; and
• management of professional telephony.
Such processing is authorised under the applicable personal data protection regulations and, in all cases, is based on the legal grounds of the Contract or the Service Provider’s legitimate interest. Unless otherwise provided, the personal data collected are necessary to enable the Service Provider to comply with its contractual obligations.
In accordance with personal data protection provisions, the Service Provider undertakes to ensure that the personal data collected remain strictly confidential and not to disclose them to any of its commercial partners without the Client’s prior, express and unequivocal consent, except as otherwise provided under the Contract.
The Client whose personal data have been collected has the right of access, rectification, updating, correction, withdrawal of consent, objection and deletion of all or part of the personal data relating to it.
The Client’s data may be communicated, for the purposes of compliance with AML Standards, performance of the Contract or provision of the Services, and processing and settlement of fees, to the following recipients: the Affiliated Entity, banks, chartered accountants and statutory auditors. The Client’s data may also be transmitted to police, tax or administrative authorities pursuant to a prior legal, regulatory or judicial request, or to any other person or authority where required by applicable laws and regulations or pursuant to a court decision, as well as to IT service providers for hosting and/or data backup purposes.
Similarly, the Client is informed that the Service Provider may subcontract certain of its Activities and processes to third-party service providers located within the territory of the French Republic, the Principality of Monaco, the Grand Duchy of Luxembourg, within the European Union and, subject to conditions, in certain other foreign countries. The Service Provider undertakes to take the necessary measures to ensure the security and confidentiality of the personal data thus transmitted.
For this purpose, any Client may exercise its right of access, rectification, updating and deletion of all or part of its personal data, either by post addressed to the Service Provider, or by email addressed to the attention of the Service Provider’s data protection officer, as indicated in the Contract.
Any request to exercise the rights of access, rectification, deletion or restriction of processing must be accompanied by a copy of the requester’s identity document.
Where the Client intends to exercise the rights of access, rectification or deletion under the above conditions, it expressly acknowledges that a reasonable minimum period is required in order to carry out the rectification or deletion of all or part of its personal data. Accordingly, in the event of delay in processing a request for rectification or deletion, the Service Provider may not be held liable for any direct or indirect damage or loss resulting from such delay or from the processing time of the request for rectification or deletion.
Where the collection and processing of the Client’s data are necessary for file management, or where such collection and processing are required to comply with legal or regulatory obligations, any objection by the Client shall result in the impossibility for the Service Provider to enter into a business relationship and/or to perform all or part of the Services provided for under the Contract.
Unless otherwise indicated, the personal data collected shall be retained for as long as the Client maintains a contractual or business relationship with the Service Provider, it being specified that personal data collected under the Contract, for any reason whatsoever, shall be retained for five (5) years (i) after the end of the business relationship; or (ii) where applicable, from the date of their transmission by the Client where a business relationship could not be established.
The above retention period may, as applicable, be extended, renewed or prolonged for all periods necessary to enable the Service Provider to comply with applicable regulations and limitation periods, in particular contractual, accounting and tax limitation rules depending on the circumstances, or, where applicable, for the purpose of handling any claim or request relating to the Services provided.
The Client expressly undertakes to comply with any request issued by the Service Provider in order to enable it to comply with its obligations relating to personal data protection.
More generally, the Parties undertake to cooperate in good faith in order to comply with and adhere to any legislation or regulation relating to personal data protection that may apply to them in the context of performance of the Contract, including, in particular, that described in this Article 15.
The Service Provider reserves the right to amend, without notice and at any time, the general terms of use of the Website and/or the privacy policy in order to provide up-to-date information on how it collects and processes the Client’s personal data.
16/ SUBCONTRACTING, SUBSTITUTION AND ASSIGNMENT
Unless otherwise provided in the Contract, no Party may assign all or part of the Contract without the other Party’s prior express consent.
For the performance of the Assignments entrusted to it, the Client acknowledges and expressly authorises the Service Provider, under its control and responsibility, to enlist the assistance or services of any employee, consultant or agent, and to freely substitute, subcontract, transfer, mandate or sub-delegate all or part of its Assignments to the Affiliated Entity, subject to informing the Client in advance by any written means.
Similarly, the Client is informed that the Service Provider may subcontract certain of its Activities and processes to third-party service providers which may be located within the territory of the French Republic, the Principality of Monaco, the Grand Duchy of Luxembourg, within the European Union and, subject to conditions, in certain other foreign countries. The Service Provider undertakes to take the necessary measures to ensure the security and confidentiality of the Client’s personal data thus transmitted.
17/ NON-SOLICITATION OF PERSONNEL
The Client undertakes not to solicit, recruit or cause to be recruited, directly or indirectly, any member of the Service Provider’s personnel or of the Service Provider’s Affiliated Entity, throughout the term of performance of the Contract and for a period of twenty-four (24) months following its termination, for any reason whatsoever.
In the event of breach of this undertaking, the Client shall pay to the Service Provider, without prejudice to the application of any non-compete clauses, where applicable, provided for in the employment contract of the employee concerned, financial compensation equal to the amount of gross payments, inclusive of all charges, made in respect of the remuneration concerned during the twenty-four (24) months preceding the employee’s departure.
18/ NO WAIVER
The fact that either Party does not avail itself of one or more provisions of the Contract shall in no event imply that such Party waives its right to avail itself of them at a later date.
19/ SEVERABILITY
If any provision of this Contract is or becomes illegal, null and void, or unenforceable under any legal or regulatory provisions applicable to it, such situation shall not affect the legality, validity or enforceability of any other provision of this Contract.
In such a case, the Parties undertake to meet in good faith to negotiate the drafting of a new clause intended to replace the clause declared null and void, unwritten or deprived of effect, so as to render such provision valid and effective, and so that the spirit and wording of any new clause are as close as possible to the former clause.
In order to ensure that the Contract remains in force and to enable the Services to be provided, the Parties agree that the Service Provider shall have the right to make any necessary changes to the scope or nature of its Assignments as a result of any legislative or regulatory change under any national or foreign law, subject to informing the Client in advance by any written means (including email). In the absence of refusal by the Client expressed by registered letter with acknowledgement of receipt or by email within ten (10) calendar days following receipt by the Client of the Service Provider’s notification, the Client shall be deemed to have accepted such amendment without it being necessary to formalise such agreement by way of an amendment to the Contract, and without affecting the Service Provider’s right to receive any promised, due or payable remuneration.
20/ GOVERNING LAW AND JURISDICTION
The Contract is drafted in French. Where all or part of the Contract is translated into one or more foreign languages, only the French text shall prevail in the event of a dispute.
Unless the Contract expressly provides otherwise as to the application of another law in relation to all or part of the Contract and/or the Assignments provided by the Service Provider and/or the Affiliated Entity, it is expressly agreed that the Contract shall be governed by and construed in accordance with French law, without regard to any rules relating to conflict of laws.
In the event of a dispute between the Parties relating to the Contract, whatever its subject matter or nature, the Parties undertake to meet in order to seek an amicable solution within thirty (30) calendar days starting from the sending of the first notice sent by the more diligent Party to the other Party. During this period, the Parties shall refrain from initiating any action, and undertake to waive or cease any action complained of or likely to adversely affect the other Party. Failing an amicable agreement within thirty (30) calendar days following the sending of the registered letter notifying the grounds of the dispute to be resolved, all disputes shall be resolved in accordance with the provisions hereof.
Unless otherwise required by mandatory law or expressly provided otherwise in the Contract in relation to the attribution of jurisdiction to any other court in respect of all or part of the Contract and/or the Assignments provided by the Service Provider and/or the Affiliated Entity, any disputes to which the Contract may give rise, concerning its validity, interpretation, performance, termination, and their consequences and aftermath, shall be submitted exclusively to the competent courts in accordance with the jurisdiction rules laid down by French law.
21/ NOTICES AND DOMICILIATION
For the performance of the Contract and its consequences, the Parties elect domicile at the addresses indicated for each of them in the Framework Engagement Letter.
Any notice or service in connection with the Contract shall be made, unless otherwise provided in the Contract, by registered letter with acknowledgement of receipt and shall be deemed validly made upon receipt by the receiving Party.
Where either Party has its domicile or registered office abroad, any notice shall be deemed validly made under the same conditions only if sent in writing, by means of a recognised national or international postal service system enabling proof of postage, full tracking (from posting to delivery) and documented evidence of receipt by the receiving Party.
Any change of domicile and/or, more generally, of the Client’s contact details (electronic, telephone or otherwise) must be notified to the Service Provider by post or by email. In the latter case, the change shall only become effective after a document countersigned by the Parties in the form of an amendment to the Contract.
22/ WEBSITE
Access to and use of the Website are governed by the general terms of use of the Website and/or the Service Provider’s privacy policy, accessible on the Website, which form an integral part of this Contract, or, failing that, these General Terms and Conditions.
The Website is an exclusively informational website, the purpose of which is to present the activities of the Service Provider and/or the Affiliated Entity and the main characteristics of their services.
All information available on the Website is provided for indicative purposes only. Any information may be amended without notice by the Service Provider, which reserves the right to modify the Website at any time and without notice, in particular as regards the design, access, presentation and/or configuration, as well as all or part of its services or functionalities, including to carry out updates, maintenance, migration or any other operational changes deemed necessary.
The information published on the Website does not constitute:
• an offer of products or services that could be construed as a public offering of securities or as any activity of canvassing or solicitation to buy or sell securities or any other management or investment product;
• an incentive or advice with a view to any investment or arbitration in securities or any other management or investment product.
The Service Provider disclaims any liability for any use that may be made of such information and any consequences that may result therefrom, in particular in relation to decisions that may be taken or actions that may be carried out on the basis of any information published on the Website.
The information contained on the Website must in no case be construed as investment advice, legal, tax or other advice.
When browsing the Website, cookies may be placed on the device used during navigation, such as a computer, tablet or smartphone. Any relevant information in this respect is set out in the general terms of use of the Website and/or the Service Provider’s privacy policy, accessible on the Website.
The Service Provider’s liability may not be incurred in respect of the foregoing. Likewise, the Service Provider’s liability may not be incurred in the event of any malfunction, disturbance, suspension or interruption of any communication network or of the Internet that may restrict, limit, suspend or prevent, temporarily or permanently, access to and use of the Website.
23/ PRE-CONTRACTUAL INFORMATION
The Client releases the Service Provider from any liability in respect of the subject matter of this clause and acknowledges having been informed by the Service Provider in a clear and comprehensible manner, by being provided with these General Terms and Conditions, prior to signing the Contract and in accordance with the applicable legal provisions, to the extent that they apply to the Contract, of:
• the essential characteristics of the Services, which the Client declares to accept with full knowledge of the facts. The Client is required to refer to the description of each Service in order to be aware of its essential properties and characteristics;
• the price of the Services and ancillary costs, as specified in Article 8 of these General Terms and Conditions;
• where the Contract is not performed immediately, the timeframe within which the Service Provider undertakes to provide the agreed Assignments, as described in more detail in Article 5 of these General Terms and Conditions;
• information relating to the identity of the Service Provider, its postal, telephone and electronic contact details, and its Activities;
• information relating to any legal and contractual warranties possibly provided by the Service Provider and the terms of their implementation;
• termination procedures and other important contractual conditions of the Contract and, where applicable, the costs of using the distance communication technique, such as the Website;
• accepted means of payment; and
• its legal rights in the event of a dispute with the Service Provider.
In accordance with Article 1 of these General Terms and Conditions, the fact that the Client signs the Framework Engagement Letter or the Contract entails full adherence to and acceptance of these General Terms and Conditions and the obligation to pay for the ordered Services, which is expressly agreed and accepted by the Client, who declares and acknowledges having full knowledge thereof, and consequently waives, in particular, the right to rely on any contradictory document.