Date of modification : January 1st, 2013
Preamble - Definition of terms
This document is an indicative translation of the french version of the General terms and conditions of sale (Conditions générales de vente). This document has been written for an easier understanding as a first approach. Given that this document may not be a perfect translation of the original document, the only valid general terms and conditions of sale are the french version of these.
ScaleDEV is an individual company managed by Mr Thomas HERISSON, Headquartered at 12 Rue Bégand - 10000 Troyes, registered under number 449 707 702 00097.
In the previous terms and conditions of sale, the company ScaleDEV is denominated "ScaleDEV" and the client or the potential "the CLIENT". The previous terms and conditions of sale are here next denominated "Terms and Conditions".
For the interpretation and the implementation of the current Terms and Conditions, it is agreed that the following terms are defined like this :
"Delivery" means the object of the sale done by ScaleDEV. The delivery can be a combination of services delivery as an advice, providing of a knowledge, providing license of operating software package, software or patent, additional delivery after the purchase of a software or operating software and tracking of this one, intellectual delivery, website designing or business application (non-exhaustive list).
"Website or Internet" means all the pages compound of texts, images and when needed multimedia elements accessible by internet address.
"Sources" means the elementary content needed to create a non-physical delivery : texts, images and sounds for a website, accounting records for an accounting solution, and more. Unless otherwise specified sources supply is at the expense of the CLIENT.
"Design brief" represent the document delivered by the CLIENT or realized by ScaleDEV against compensation. Describing the clearer as possible the content of the expected delivery and the possible constraints or specificity about the technical conditions of production, exploitation and quality of a delivery. The design brief will be valid only once that the 2 parts signed it. Without signature by one of the both parts the design brief will be considered as null and void.
"Contractual element" represent an estimation, a purchase order, a contract, a design brief, a business proposal once it is signed by the 2 parts.
Article 1. Object - Field of application
1.1 Terms and conditions aim to manage contractual relationship between ScaleDEV and the CLIENT and manage the field of delivery offered by ScaleDEV.
1.2 Terms and conditions apply to every delivery performed by ScaleDEV in the whole world. It takes advantage on every conditions of purchase. Exception done by written agreement by ScaleDEV.
1.3 The fact for a natural or legal person to order a service or a product from ScaleDEV company involves a total acceptation of the present terms and conditions of sales.
1.4 ScaleDEV can modify, re-update or correct the present terms and conditions. notably to take notice of a legislative, regulatory, jurisprudence and/or technical evolutions. The present terms and condition are available at any time on the website www.scaledev.fr. The update doesn't concern in any way the past deliveries, exception done for the deliveries with time left up to 6 month starting from the modification date. In this case, the last terms and conditions are applied between the 2 parts.
1.5 In the case where one of the current terms and conditions arrangements would be declared null or unwritten by a competent court of law, the other rules will keep all their validity and their range without restriction.
Article 2. Formation and conditions of execution of the contract
2.1 The respective obligation of each parts, to perform the delivery for ScaleDEV and to pay the delivery for the CLIENT, starts from the moment the CLIENT signed and sent back by fax, email or mail the contractual document(s) issued by ScaleDEV and the collection of an advance payment of 30% of the total amount to be paid.
2.2 The CLIENT is aware that the IT project which is defined between the parts can be revealed complex at the core of his company and can potentially deeply question the organization and working methods of his company and the qualification of the personnel. This project expects a close collaboration between the parts, a constant dialogue in a spirit of mutual trust and respect.
Personal investment of the CLIENT in the creation of the website is essential. Without what a result which possibly can't match with his expectations wouldn't be the responsibility of ScaleDEV as indicated at the following article 5.3.
2.3 ScaleDEV can decide to refuse, stop or modify the delivery without allowance to the CLIENT nor deposit refund at the moment :
- the CLIENT doesn't fulfill the amounts billed by ScaleDEV
- the CLIENT doesn't show, or doesn't show anymore credit guarantee
- when the CLIENT doesn't show, or doesn't show anymore required and specific skills for the complete achievement of the delivery, or because the CLIENT show a systematic opposition to the advices and deliveries given by ScaleDEV.
- the CLIENT refuse to provide the required instructions or sources for the complete realization of the delivery.
- ScaleDEV identify any hacking action, scam or non-respect of the ethical, legal, moral rules of the profession, applicable to the CLIENT
2.4 ScaleDEV reserve the right to bring non-substantial modifications to the delivery without calling into question the contractual links nor obligations between the two parts.
2.5 Any domain name management, web hosting or email address management are subject to an annual invoice at the anniversary date of the implementation of the service(s). In the case of interrupting at the initiative of the client, or transfer to another provider in the course of the year for one or another of these deliveries. The payment is due for the rest of the whole current year.
2.6 No order for a delivery can be cancelled without the approval of ScaleDEV. By default the CLIENT would be required to pay the totality of the amount due to ScaleDEV.
Article 3. Prices - billings - delays
3.1 The price of the delivery is determined. It is specified taxes excluded expressed in euro total amount to pay.
3.2 Any order of a delivery service or selling of an associated product is executed without possibility of withdrawal from the client whatever the reason given. Products sold considered as immaterial product, it can't lead to a refund excepted with written agreement by ScaleDEV.
3.3 Conditions of the offer are exclusively about the specified deliveries on the contractual elements. Any additional delivery and non-expected will be the subject of price increase equivalent to its value. The denial of payment of this kind of delivery will open the right for ScaleDEV the early termination and the complete payment of the sales contract, and a compensation equal to the damage suffered and/or the value of the additional delivery.
3.4 In the case of payment failure or partial payment of the price of the delivery :
- the CLIENT will have to pay a delay penalty equivalent to three times the legal interest rate, applying the article L. 441-16 of the french Commercial Code. The rate of legal interest is the current one from the day of the recognition of the deficiency. The penalty is calculated on the amount taxes excluded of the remaining due amount and starts at the payment deadline.
- the whole services sold can be suspended if the CLIENT doesn't manifest himself at the reminders from ScaleDEV. After formal notice by mail with request of acknowledgement of receipt, the sale can be terminated as of right in favour of ScaleDEV. The termination take effect two weeks after sending formal notice remained unsuccessful. In this case ScaleDEV is allowed to stop sold services, to claim the refund of the delivery or its compensation. The received deposits stay acquired. ScaleDEV is also in right to apply in his favous the reservation of ownership mentioned in the following article 7.
3.5 Any contestation or complaint about an invoice must be sent by letter with request acknowledgment of receipt in the ten days following the reception of the invoice, without what ScaleDEV will refuse the request(s).
Article 4. Delivery of the delivery
4.1 Unless express otherwise stipulated the delivery whatever the delivery is sent by computer transmission (email, download on internet, ...). Unless protesting by ScaleDEV et the CLIENT in a delay of two weeks starting from the planned delivery date, the delivery is considered as delivered at the planned dates and conditions.
4.2 The CLIENT can ask for a deferring delivery in a maximum of three weeks by sending a written request to ScaleDEV. However no delivery delay at the initiative of the CLIENT will be accepted if the request hasn't been done 72 hours before the planned delivery date of the delivery.
4.3 Delivery dates are given for information purposes only. ScaleDEV can't be held accountable for any delay to refuse the delivery or require a compensation or discounts.
4.4 When the CLIENT doesn't provide the require elements for a proper realization of the delivery in the right delay (sources, design brief, etc.), this will directly involve the delay of the realization and also the delivery of the delivery by ScaleDEV. However ScaleDEV won't be responsible for a situation he is the first to suffer. As a consequence, the CLIENT remains subject to penalty until the elements are delivered or will be sanctioned as mentioned in the article 2.3.
4.5 If at the delivery of the delivery, the CLIENT consider that the delivery doesn't correspond with the request, he must, in the two following months from the delivery, declare in writing the faults and failures, and provide an explanation for the realization of these. At all events, the guarantee of a delivery is only about the elements mentioned in the contractual elements. In particular, in the case of complaint on a delivery essentially non-physical (web site, managing solution, business application, etc.) The design brief keep being the reference document which the two parts must refer to evaluate if the delivery correspond to the specificity of the project. Only the elements mentioned in this document are considered as the obligations of ScaleDEV. If design brief can't be presented, ScaleDEV's obligations are limited to a minimal consideration in view to mentioned deliveries in the contractual elements. In this case, the CLIENT can only be right on a missing realization of the delivery or one of its major elements, minor elements or already integrated ones being considered as perfectly achieved.
Article 5. Obligations and responsibility from ScaleDEV
5.1 ScaleDEV is committed to take the necessary care and diligence to supply a quality service, in compliance with the practices of the profession. ScaleDEV has an obligation to use its best efforts, which should not be considered as an achieve of a specific result.
5.2 ScaleDEV is committed to :
- act swiftly in case of functioning default coming from a design or execution problem from its solutions
- assure the maintain to an adequate level its tools quality
- make its best to assure in optimal conditions the proper functioning of the deliveries acquired by the CLIENT
5.3 ScaleDEV can't be considered responsible in case of :
- Mistake, negligence, failure or lack of maintenance from the CLIENT, non-compliance of the given advices : In particular when ScaleDEV provide hosting delivery, he keeps the FTP access control. However once the client got those FTP access. ScaleDEV will automatically not be liable anymore to the unavailability of the pages, content (including non-compliance of copyright), displaying failures, partial or totally deterioration of the pages content.
- Hosting interruption
- Mistake, negligence, failure of a third on which ScaleDEV doesn't have any power of monitoring control. In particular when ScaleDEV provide links to other websites, by advertising banner or not, or by any other means, ScaleDEV can't be responsible of the content, products, services, ads or not, or any other elements of these websites including any damages, loss, actual or alleged, consequential or in connection with the using of informations, services or available datas on those websites
- Illegal disclosure or using of the password confidentially provided to the CLIENT
- Dysfunction or slowing down of the networks or the Internet as a whole.
Article 6. Intellectual properties
6.1 Any element provided by the CLIENT is protected by the right of intellectual properties and remains his own propriety. He claims to own all the required rights and/or authorizations, and assures ScaleDEV against any potential claiming of a third who would pretend to have an intellectual property on one of the elements provided by himself including any texts, images, logos, graphics, photos, sounds or videos movie, files, software, database (non-exhaustive list).
6.2 The whole realizations from ScaleDEV stay its exclusive intellectual property, and ScaleDEV reserves the right to resell or use a whole or a part of a its realizations. By this way, Any software, business application, or other specific developments performed for the CLIENT keeps being the propriety of ScaleDEV. Exploitation rights are only given to the CLIENT on a non-exclusive basis.
6.3 ScaleDEV gives authorization to the CLIENT for a non-physical delivery to modify or improve the existing source code to the strict conditions to not resell or duplicate the sources. In this case the CLIENT is the only responsible of the modifications or improvement and by the article 5.3 of this terms and conditions of sale, ScaleDEV can't be considered responsible.
6.4 When ScaleDEV acquire one or more domain name aiming an internet delivery, those domain name are bought by the name and for the CLIENT. The CLIENT can request at any moment to transfer to his own contact details of the domains property under condition of payment to ScaleDEV of the amounts due for the delivery which have been required to obtain the domain name and generally all the due amount to ScaleDEV. By default, the CLIENT is under effects of article 3, 4 and 7 of these present terms and conditions and would expose himself to the resell or non-renewal of the domain names.
6.5 The whole content of the ScaleDEV website is entirely the propriety of ScaleDEV, and is protected by the current legislation on the copyright and the intellectual property. Without prior agreement written from ScaleDEV it is prohibited to use, even partially, the content of the website.
6.6 Violation of those disposal may result any order void, and this notwithstanding the pursuing proceedings.
Article 7. Reservation of ownership
7.1 ScaleDEV keep the entire property of the delivery and each of its elements, including non-physical until effective payment of the entire amount and accessories et more generally until total payment of any invoice due by the CLIENT to the company ScaleDEV.
Article 8. Utilisation des références
8.1 The CLIENT allow ScaleDEV to use his name and to mention the deliveries performed for his name to business finality.
8.2 ScaleDEV allow itself the right to mention its website creator quality, and to insert its logo on any deliveries performed for the CLIENT, notably inside the websites.
Article 9. Confidentiality
9.1 ScaleDEV and the CLIENT are committed to keep confidential the informations and documents of any kind about the other part that they could have access during the delivery/service.
9.2 the previous disposal does not mean that ScaleDEV can't outline his business relationship with the CLIENT as it is specified at article 8 of this terms and conditions of sale.
Article 10. Information Technology and Liberties (French law)
The client is committed to ensure that the whole obligatory formalities to accomplish to the CNIL (National Commission of Information Technology and Liberties).
In accordance with the Information Technology and Liberties laws from 6 January 1978 (art. 34), the CLIENT has constantly a right of access, modify, rectify and suppression on the informations about himself.
Article 11. Case of absolute necessity
The company ScaleDEV has no responsibility in case of non-execution or delay at the execution of its obligations if this situation is the result of a factor independent of its will and out of its control. Is considered as this, every external event, unpredictable and unstoppable in the way of the article 1148 of the french civil code and the french case-law.
Article 12. Non-solicitation of the staff
The CLIENT is committed to not poach the staff from ScaleDEV who participated to realization of a delivery for this CLIENT until the 2 following years after the end of the last delivery done by the employee concerned in favour of the CLIENT.
Article 13. applicable law - attribution of competence
This present Terms and Conditions are submitted to the french law.
In case of legal dispute and no amicable agreement, the only recognized and accepted jurisdiction by the parts is the district court of Troyes (10).