CGV
These general terms and conditions apply to all supplies, in particular the supply of Modules, and associated services provided by CERES to the Customer (together or separately the “Services”).
The Customer acknowledges that it has received from CERES all the information necessary or useful to enable it to evaluate the proposal made by the latter. In this context, the issuance and/or signature of the Order by the Customer shall constitute a declaration that the Services offered by CERES are in accordance with the Customer’s needs and that they adequately meet the Customer’s requirements.
If the Customer does not agree with all or part of these conditions, it is up to the Customer to contact CERES in order to discuss the changes to be made to these conditions.
The natural person identified in the Order accepts these conditions on behalf of the Customer. The natural person who accepts these conditions declares and guarantees that he/she has the right and power to legally bind the Customer.
The Customer declares that he/she is contracting as a professional and for professional purposes. He therefore has no right of withdrawal.
Article 1. Definitions
CERES: refers to the company CERES with its registered office at 13 rue du Colisée 75008 Paris, registered with the Paris Trade and Companies Register under number 884122573.
Customer: shall mean the legal entity issuing the Order.
Order: refers to the document formalising the agreement of the Parties and specifying the particular conditions under which the Services will be provided by CERES, as well as the financial terms and conditions, whatever form it may take, and in particular the sending of a purchase order in accordance with a proposal from CERES, the acceptance of a quotation, or the signing of another type of document by the Parties.
General Conditions: refers to the present contractual document.
Contract: refers to the contractual package composed, in decreasing order of priority, of the Order and these General Conditions.
Module: refers to a training module offered by CERES as presented to the Client and described in the Order. The Module supplied to the Customer is always Personalised, i.e. it incorporates the Customer’s distinctive signs which will have been given by the Customer to CERES prior to the signing of the Order.
Party(ies): refers individually to the Customer or CERES and collectively to the Customer and CERES.
Services: has the meaning given to it in the preamble to the present document.
User: refers to the natural person, employee of the Customer, who uses the Module under the responsibility of the Customer.
Article 2. Purpose and warning
The purpose of the Contract is to define the rights and obligations of the Parties in the context of the Services offered by CERES and in particular the provision of Modules by CERES.
The Module is made available to Users under the sole and exclusive responsibility of the Customer. It is the Customer’s responsibility to check the content of the Module and, in particular, to ensure that it complies with the Customer’s requirements and with any applicable regulations. CERES shall in no way be held liable in this respect.
Article 3. Entry into force and duration
Unless otherwise specified in the Order, the Contract shall come into force and start on the date of the Order.
It is concluded for the duration specified in the Order.
Article 4. Provision of the Module
CERES shall make available to the Customer the Module(s) selected by the Customer in the Order upon receipt of the agreed price for the provision of the Module.
In this context, it is specified that the Customer has been given a presentation of the Module, including the distinctive signs communicated by the Customer to CERES prior to placing the Order. The Customer was therefore able to check, before signing the Order, that the Module met its expectations.
Any request to modify the Module shall be processed under the conditions specified in the article “Services”.
The Module is made available to the Customer by download under the conditions specified in the Order.
Article 5. Obligations of CERES
CERES shall use its best efforts to deliver the Services in accordance with the Contract. CERES does not undertake any obligation of result, in particular with regard to the performance or suitability of the Modules or Services.
If the Order specifies a time limit, such time limit shall begin to run on the day of acceptance of the Order by CERES, unless the execution of the Order depends on the fulfilment of a prior condition such as the payment of a deposit or the sending by the Customer of certain elements. In such a case, the time limit shall start to run from the date of fulfilment of such obligation(s).
The deadlines are indicative. A delay in relation to a date or deadline may not under any circumstances justify the termination of the Contract, nor give rise to penalties.
In any event, CERES shall be released from its obligations under an Order in the event of force majeure and other events that make the performance of an obligation substantially difficult, delayed or impossible, such as supply or transport difficulties, labour disputes, administrative measures, legislative or regulatory changes, non-conforming or late deliveries by its suppliers, non-performance of its obligations by a third party, including failure in the supply of electrical energy, transport or telecommunications. Impediments of a temporary nature release CERES from its obligations for the duration of the impediment plus an appropriate period of time for restoration.
CERES is exempt from any penalty and liability in the following cases
– the information and/or elements to be provided by the Customer are not communicated within a period of time compatible with the fulfilment by CERES of its own obligations ;
– the defined assumptions are not met for reasons not attributable to CERES;
– in the event of a delay caused by the customer or a third party
– in the event that the customer does not comply with its contractual obligations.
Warning: To ensure the smooth running of the course, access to an Internet connection is required.
Article 6. Obligations of the customer
The Customer undertakes to respect its obligations under the Contract. The Customer acknowledges that CERES’ ability to perform its contractual obligations correctly is conditioned by the Customer’s compliance with its own obligations and by the accuracy and completeness of the information and elements provided by the Customer to CERES.
The Customer undertakes in particular to :
– to collaborate actively and permanently, in particular by being bound by a general obligation to provide information, both passively (at CERES’ request) and actively (whenever information is likely to be useful for the proper performance of CERES’ obligations);
– ensure the availability, cooperation and competence of its personnel involved in the performance of the Contract;
– to take delivery, approve, validate and/or accept the deliverables, to the full extent provided for in the Contract, and within such time limits as will enable CERES to meet its own deadlines;
– pay CERES the agreed prices in accordance with the conditions and time limits set out in the Contract.
Article 7. Property
7.1 Exclusive property of CERES
CERES retains exclusive ownership of all rights to the Modules as well as to the creations made within the framework of the performance of the Contract and shall hold all intellectual and industrial property rights to the ideas, concepts, know-how, documentation or elements created within the framework of the Contract, with the exception of the Elements defined below.
CERES reserves the exclusive right to maintain and develop the Modules.
7.2 Licence to CERES
The Customer grants CERES the necessary and sufficient rights to all elements made available to CERES by the Customer within the framework of the Contract (the “Elements”), in order to enable CERES to perform its obligations as provided for herein, and in particular to the distinctive signs, such as brand, name, logo and any other elements that may be transmitted by the Customer to CERES for use within the framework of the present Contract.
In this context, the Customer grants CERES, as well as its subcontractors, for the duration of the Contract and for the entire world, all useful or necessary rights, and in particular the rights of use, reproduction, modification, and distribution, by all processes and on all media, it being understood that CERES may only use the Elements for the strict needs of the performance of the Contract and in particular :
– for the purposes of reproduction and distribution on the Site,
– for the purposes of reproduction and distribution on the Custom Modules,
– for communication purposes,
– for the purpose of promoting the Services.
The Customer declares that it holds all the rights and authorisations necessary to enable CERES to perform its obligations under the Contract, in particular as regards intellectual property rights over the Elements, and guarantees CERES against any possible action by third parties. The Customer shall reimburse CERES for any costs incurred by CERES in defending itself.
7.3 Licence for the benefit of the Customer
Under the terms hereof, and subject to the Customer’s full payment of the sums due to CERES, the Customer who benefits from the provision of a Module by download is granted a non-exclusive, non-transferable and non-assignable right of use of the said Module, for the duration agreed in the Order.
Any new licence is granted for a period of twelve to sixty months depending on the formula chosen, starting from the Subscription Date. At the end of this period, it is then tacitly renewed for successive periods of equal duration, unless terminated by either party by registered letter with acknowledgement of receipt, three months before the end of the current period.
The right of use is granted solely for the Customer’s own internal purposes, for the purpose of making the Module available to the Customer’s employee Users. The Module may not be used for any other purpose than those mentioned above, nor by any third party. The companies of the group to which the Customer belongs are not authorised to use the Module.
All rights not expressly granted to the Customer are prohibited. The Customer is therefore prohibited from :
– reproducing the Module, in any form and on any type of medium whatsoever, for purposes other than making a backup copy;
– translate, adapt or arrange the Module
– modify the Module or intervene in it, including for the purpose of correcting anomalies that may affect the operation of the Module, insofar as the right to correct such anomalies is reserved solely to CERES;
– reverse engineer, disassemble or decompile the Module, except to the extent that such a right is granted to users by mandatory law and to the extent granted by such law;
– use the Module to process or authorise the processing of data of a third party or use it to provide services on behalf of third parties, including companies of the group to which the Customer belongs, in any form whatsoever;
– disable any licensing or control function of the Module;
– modify, alter or delete in any way the protection systems, such as “keys”, installed in the Module;
– distribute, market or make available, in any way whatsoever, whether free of charge or for a fee, the Module.
The Customer undertakes to maintain the proprietary notices and trademarks or distinctive signs that may appear on all copies and all copies, even partial copies, of the Module.
Article 8. Warranty against eviction
CERES guarantees the Customer against any action, claim, demand or opposition (hereinafter the “action”) on the part of any person invoking an industrial or intellectual property right which is infringed by the supply of the Module and/or its use, under the conditions provided for herein, provided however :
– that the Customer immediately notifies CERES, by registered letter with acknowledgement of receipt or by any equivalent method, of the existence of such an action in writing and provides CERES with all the information enabling it to defend its interests;
– CERES controls the defence and all negotiations of a settlement or compromise relating to the action. If the Client so desires, CERES shall have sole control over the defence and any negotiations;
– that the Client does not make any admission or statement of any kind which might prejudice CERES’ defence.
CERES shall bear the cost, under the conditions and within the limits defined in the article ‘Liability’, of (i) any damages which the Customer may be ordered to pay by a court decision having the force of res judicata in the main proceedings and in the final instance, based on the demonstration of an infringement exclusively attributable to CERES, or (ii) any damages for which the Customer is liable under a transaction concluded in the above-mentioned context, provided that CERES is a signatory thereto or has agreed in writing to the amount of the award and the terms of the settlement.
If an action as described above is initiated or appears to be about to be initiated, CERES may, at its discretion, modify or replace the disputed part of the Module. If none of these solutions is possible, CERES may terminate the Contract by operation of law, without recourse to the courts, subject to reimbursing the Customer for the residual value of the Module concerned, depreciated on a pro rata basis over a maximum period of three (3) years from the date on which the Module was made available.
CERES shall not be liable for any action for infringement of an intellectual property right arising from or related to
– use of the Module not in accordance with the terms of use of the Module or resulting from the Customer’s or a third party’s failure to comply with the Contract;
– the integration into the Module of any Element and/or information provided to CERES or made available to it by the Customer and/or used by CERES with the Customer’s authorisation;
– use of the Module for a purpose that does not comply with its intended purpose and/or its documentation, or for a purpose not authorised in writing by CERES.
In each of these cases, the Customer shall reimburse CERES for any costs, losses and damages of any kind arising from an action by a third party against CERES.
The foregoing provisions set out the limits of CERES’ liability towards the Customer for infringement of intellectual property rights. CERES therefore grants no other guarantee than that described in this article with respect to infringement.
Article 9. Price of the Services
9.1 Price and financial terms
The customer undertakes to pay the amounts due in accordance with the terms of the Contract.
The applicable prices are specified in the Order.
Prices are exclusive of tax. It is the Client’s responsibility to pay all taxes, duties and fees of any kind, as well as any similar charges that may be due. The applicable VAT shall be that applicable at the time of the chargeable event.
Unless otherwise stated in the Order, the Services shall be invoiced at the time of the Order and invoices shall be paid upon receipt.
9.2 Services
The Customer who wishes to benefit from a Service not specifically identified in the Order, of any nature whatsoever, and in particular a Service aimed at carrying out modifications or upgrades to the Modules, must contract this specifically with CERES.
The provision of Services shall, in the absence of a specific agreement on the applicable price, be invoiced by CERES to the Customer on the basis of CERES’ applicable hourly rate as indicated xxx [to be completed].
9.3 Terms of revision
The price for recurring services shall be revised for each new year during the month of January by applying the following formula
P1 = P0 x S1 / S0
In which :
– P1 is the revised price ;
– P0 means the price in force on the revision date;
– S1 is the last known index at the revision date;
– S0 means, for the first revision, the last known index at the date of entry into force of the Contract and, for subsequent revisions, the index used at the date of the previous revision.
In the absence of an agreement to the contrary between the Parties, the index used shall be the Syntec index.
9.4 Late payment
Any delay in payment shall give rise to the payment, by the defaulting Party, of late payment interest calculated on the basis of a rate equal to three times the legal interest rate in force on the day on which the payment is due, calculated and cumulated from the first day of delay.
For any sum unpaid on its due date, the other Party shall be entitled to charge a fixed indemnity of 40 euros for collection costs, as provided for by Article D. 441-5 of the French Commercial Code.
Article 10. Termination
In the event of a serious breach by one of the Parties of one of its major obligations under a Contract, the other Party may, by registered letter with acknowledgement of receipt, give formal notice to the defaulting Party to remedy the breach thus notified within a period of thirty (30) days. If at the end of this thirty (30) day period, the defaulting Party does not demonstrate that it has remedied the breach, the non-defaulting Party may terminate the Contract concerned by the breach by sending a registered letter with acknowledgement of receipt notifying the termination.
Breaches that may justify termination under the aforementioned conditions include the violation by one of the Parties of the intellectual property rights of the other Party, and in particular the provision by the Customer of the Module to a third party.
In the event of termination of the Contract, the Customer :
– shall immediately cease all use of the Modules and shall certify the destruction of the Modules in its possession.
Article 11. Liability
CERES is bound by an obligation of means in the performance of its obligations under the Contract.
CERES may only be held liable in the event of CERES’ fault, proven by the Customer, in the performance of the Contract. CERES shall only be liable for damage resulting from faults that are directly and exclusively attributable to it.
The Parties agree that the total liability of CERES under the Contract shall not exceed, for the entire duration of the Contract and for all the events and claims arising under the Contract, the amount corresponding to the sums paid under the Contract by the Customer to CERES during the 6 (six) months preceding the occurrence of the main event giving rise to liability.
CERES shall not be liable for any indirect damage. Furthermore, CERES shall not be liable for any loss of profit, loss of production, market, turnover, expected profit or clientele, damage caused to third parties to the Contract, damage to the image or reputation of the Customer. CERES shall not be entitled to compensation for such damage, even if it has been informed of the possibility of such damage.
The parties acknowledge that CERES, in the performance of its contractual obligations, cannot assume or be exposed to the risks associated with the customer’s activity. Consequently, the Customer shall indemnify CERES in the event of any action or claim by a third party, including members of the group to which the Customer belongs, against CERES in connection with the operation or malfunction of the Modules or difficulty in accessing the Modules online.
This clause shall apply irrespective of the legal basis of the claim, including if it is based on negligence, misrepresentation or breach of contract.
No notice of claim may be given by the Customer against CERES more than one year after the date on which the facts giving rise to the claim were discovered or should have been discovered.
All indemnities, as well as any penalties agreed upon, are of a lump-sum nature and in full discharge of the claim.
The customer guarantees that its insurers will waive any recourse against CERES or the latter’s insurers beyond the limits and exclusions set out above.
The Customer further undertakes to do everything possible to minimise the damage suffered.
The provisions of this article shall survive the expiry and termination of the Contract for any reason whatsoever.
Article 12. Technical protection measures
The Customer is hereby informed and expressly accepts that, in the context of the Services, and in particular of the provision of Modules, technical devices are implemented which allow CERES to recover information on the identification of the Customer and on the Users, as well as on the conditions of use (number of modules used, etc.).
The information obtained by means of these devices may be used by CERES to identify and sanction any illicit or non-compliant use of the Modules, which the Customer accepts.
Article 13. Confidentiality
Each of the Parties undertakes not to disclose to any third party, without the prior written consent of the other Party, the Confidential Information of the other Party for the entire duration of the Contract and for five (5) years after the expiry or termination of the Contract for whatever reason. The Parties represent and warrant that they will ensure that their personnel and any subcontractors involved in the performance of the Contract comply with this obligation.
By “Confidential Information”, the Parties mean information identified as such by a “confidential” notice, as well as information that is confidential for a Party due to its nature, and in particular information relating to its activities, finances, the technologies it uses, its commercial secrets, the prices it charges, its methods, know-how, procedures, products, documents, materials, software and tools. Proposals, orders and Modules are confidential.
Information shall not be considered as Confidential Information if it
– which is or becomes public domain through no fault of the receiving Party ;
– which was known to the Receiving Party prior to its disclosure, provided that: (i) the Receiving Party proves it by appropriate documents; (ii) it was not obtained directly or indirectly from the other Party; (iii) neither the Receiving Party nor any third party has breached an obligation of confidentiality or committed any other fault;
– which is communicated to the receiving Party by a third party without breach of any obligation of confidentiality or other wrongdoing;
– which are independently developed by the receiving Party, without the use of any Confidential Information of the other Party;
– the disclosure of which is required by law, regulation or court order.
Each Party will take all reasonable precautions to protect the other Party’s Confidential Information, taking at least the same level of precautions as it uses to ensure the confidentiality of its own Confidential Information.
Article 14. Modification of the General Conditions
CERES reserves the right to modify the General Terms and Conditions at any time. It is the Customer’s responsibility to take note of the version of the General Terms and Conditions in force before placing any Order.
Article 15. Protection of personal data
General provisions. The Parties undertake to comply with all the legislative and regulatory provisions in force and their respective obligations arising therefrom relating to the protection of personal data (“data” in the remainder of this article), and in particular the provisions of the European Regulation 2016/679 of 27 April 2016 on data protection as well as Law No. 78-17 of 6 January 1978 relating to Data Processing, Files and Liberties as amended.
Processing carried out by CERES as data controller. CERES is responsible for the processing of personal data relating to the management of its contractual relations with its customers. The personal data collected from the Customer’s personnel are essential for such processing and are intended for the relevant departments of CERES and, where applicable, its subcontractors and co-contractors, for the purposes of executing the Contract. The Customer’s personnel shall have the right to query, access, rectify and object on legitimate grounds – rights which may be exercised at the following address: contact@ceres-paris.fr. The Customer is responsible for communicating this information to its staff.
Article 16. Miscellaneous provisions
Subcontracting. CERES reserves the right to subcontract all or part of the Services to third parties. In this context, CERES may communicate to its subcontractors all necessary information and elements, notwithstanding the terms of the “Confidentiality” article herein. Notwithstanding the foregoing, CERES is and remains responsible for the proper performance of its obligations by its subcontractors.
Independence of the Parties. The relationship established between the Parties by the Contract is that of independent contractors, and the Parties do not intend to establish any other relationship between them.
Insurance. Each Party declares that it holds a professional indemnity insurance policy with a solvent company and undertakes to maintain this insurance policy in force throughout the duration of the Contract.
Assignment. As the Contract is not concluded intuitu personae with respect to CERES, the latter shall have the discretionary power to substitute any natural or legal person for itself and/or to assign the Contract to any third party of its choice, which the Customer expressly declares to accept in advance. In this case, the Customer already consents to the assignment and, in the event of assignment, releases CERES for the future.
Partial invalidity. If any provision of the Agreement is held to be invalid or unenforceable, all other provisions shall remain in force to the extent that this does not render the Agreement null and void.
Headings. The headings of the articles and sections of the Contract are for guidance only and shall not affect the meaning or interpretation of the Contract.
Waiver. Failure or delay by either Party to enforce any provision of the Contract shall not be construed as a waiver of any future enforcement of such provision.
Survival. All obligations hereunder which do not, by their nature, lapse upon termination, shall remain applicable until their full performance.
Communication. CERES may use the Customer’s name, trademarks, logo and contact details, as well as a general description of the supplies and services covered by the Contract, in its presentations, customer lists, case studies and other promotional or marketing materials, including, for example, in its press releases, brochures, reports and statements, mailings and electronic media.
Article 17. Disputes
Any dispute arising from the interpretation or performance of the Agreement shall be subject to an attempt at amicable settlement.
In the event of a dispute between the Parties that cannot be resolved by the usual contacts of each of the Parties, each Party may request in writing that a meeting be held within ten (10) days of being convened. If the dispute has not been resolved to the satisfaction of both Parties within twenty (20) days of the date of such meeting or of the notice of the meeting if no meeting has been convened, either Party shall be free to apply the termination provisions of the Contract and/or to bring the matter before the competent courts.
Notwithstanding the foregoing, the Parties agree that a dispute relating to a breach of intellectual property rights shall not be subject to the procedure defined above.
Article 18. Applicable law and competent courts
The Contract is governed by French law.
Any dispute arising from the interpretation or performance of the Contract shall, after an attempt at amicable resolution, be submitted to the exclusive jurisdiction of the competent court of PARIS, notwithstanding multiple defendants or third party claims, whatever the type of procedure or action, even for emergency or conservatory procedures, in summary proceedings or on request.