General Terms and Conditions of Sales

Providing Consultation by Sparks & Co.

V.2 – 12/19/2017

GENERAL

These General terms and Conditions of Sales, or « GTCS », are applicable from the 18th of June 2016, and available at any time on our website www.sparksandco.com. They take precedence over any other version or any other contradictory document. These GTCS can be changed afterwards if deemed necessary. The applicable version related to the service the Client agreed upon is the one available on the website www.sparksandco.com/general-terms-conditions-of-sale at the date the Order has been placed. These GTCS are the basis of commercial negotiations between the Parties and are applicable to any Order. Any differing conditions or terms of buyer are herewith objected to and shall not apply.

GTCS are intended to define all of the conditions and terms of execution of the Service the Client has agreed with SPARKS & CO. The Client agrees upon and acknowledges the current GTCS before they placed the Order and expressly states accepting them without reservations.

As required by the legal provisions of the article L.441-6 of the French Commercial Laws Code, these GTCS are mandatorily disclosed to any Client who asks SPARKS & CO. If a mandatory provision fails to appear in these GTCS, it shall be considered as being governed by the current terms of use of the Fédération Syntec Informatique.

DEFINITIONS

« Client » shall refer to any company or third party within contract with the SPARKS & CO’s company. « Provider » shall refer to SPARKS & CO the company. « The Parties » shall collectively refer to the Client and SPARKS & CO. « Offer » shall refer to the commercial offer SPARKS & CO provides to the Client. « Service» shall refer to the consultancy service the Client ordered to SPARKS & Co. « Order » shall refer to the preliminary document established between the Client and SPARKS & CO.

SECTION 1 – NATURE OF SERVICES

SPARKS & CO shall limit its scope of services according to the extent of its means. Its Offer includes in particular:

  • The creation and implementation of communication and dissemination strategies   as part of the European Research Project « Horizon 2020 ».
  • The consultancy service in communication in order to submit different kind of research projects, including but not limited to ERC grants, SME instruments, etc.
  • Consultancy service and the production of print and web communication material.
  • Providing communication training.

SECTION 2 – QUOTATIONS AND ORDERS

A. CONSULTANCY OFFER

2.1.1 SPARKS & CO provides, to any Client who requests, a Quotation based on the Offer. The Quotation is valid for one (1) month.

2.1.2 Contractual relations between the Parties shall be settled by the signature of the Quotation which shall automatically become an Order. The Quotation shall define all the equipment required to achieve the Service. The equipment is the Client’s responsibility.

2.1.3 An Order is valid if, only if, the Client fully agreed upon the GTCS, without reservations whatsoever. Likewise, the Order is considered as valid if, and only if, it has been accepted by an authorized person within SPARKS & CO. Failing that, commitments that SPARKS & CO representatives made shall be considered invalid and void.

2.1.4 Any Order SPARKS & CO has accepted is firm and final

B. EUROPEAN PROJECTS

2.2.1 When involved in the submission of a proposal to the European Commission, SPARKS & CO will provide a Quotation to the Consortium and/or coordinator. Said Quotation is based on the Offer and shall be valid for one (1) month

2.2.2 Contractual relations between the Parties shall be settled by the signature of the Quotation which shall automatically become an Order. The Quotation shall define all the equipment required to perform the Service. The equipment is the Consultant’s responsibility.

2.2.3 Should SPARKS & CO be removed from the consortium or partnership before the submission to the European Commission, the Order shall become an Invoice. which terms of payment are defined in the section 4 of these GTCS.

2.2.4 Should the proposal be rejected by the European Commission, the Order shall be deemed obsolete and SPARKS & CO shall abandon its claim to any remuneration.

2.2.5 Should the proposal be approved by the European Commission after submission, the Order shall be deemed obsolete and SPARKS & CO shall abandon its claim to any remuneration.

2.2.6 An Order is valid if, only if, the Coordinator of the Project fully agreed upon the GTCS, without reservations whatsoever. Likewise, the Order is considered as valid if, and only if, it has been accepted by an authorized person within SPARKS & CO. Failing that, commitments that SPARKS & CO’s representatives made toward the Consortium and/or the Coordinator shall be considered invalid and void.

2.2.7 Any Order SPARKS & CO has accepted is firm and final

SECTION 3 – PRICES

3.1 Current prices of Services in Euros are set when the Order is placed. They are firm and non negotiable. The indicated prices are stated exclusive of VAT or other taxes. It’s the Client’s prerogative to determine the VAT, based on the French applicable rate the day the Order is placed. Any change on the French applicable VAT rate shall be passed on to the Client by SPARKS & CO and reflected in prices.

3.2 Prices of Services are set in the Order, based on the provisional timesheet as defined in the Offer. Any work realized beyond the period the Parties agreed upon in the provisional timesheet shall be charged. Terms of additional charges shall be defined in the Order.

3.3 Additional Service charges shall be listed in the Offer and reimburse to SPARKS & CO via an amendment to the Order. Are notably excluded: any night interventions, any interventions during the weekend or holidays, being solicited to remain on standby, any business trip.

SECTION 4 – TERMS OF PAYMENT AND SERVICES

4.1 The Client must pay prices of services to SPARKS & CO, as scheduled in the Order.

4.2 Client has to pay any invoice issued by SPARKS & CO within thirty (30) days.

4.3 If the Parties agreed upon a periodic payment, any non-payment in due time shall as of rights and only to SPARKS & CO’s initiative entail close out netting.

4.4 Any non-payment in due time or any non compliant payment shall as of rights and without any formal notice entails a penalty payment, based on a ten percent (10%) for each month of delay as well as the payment of a flat-rate recovery allowance of forty euros (40€). Those penalties shall start on the day following the payment date the Parties originally agreed upon and until the complete payment, knowing that every initiated month is considered an expired month.

4.5 After formal notice, any default of payment shall lead to the immediate payability of the remaining due sums as well as the payability of an indemnity based on a penalty clause equal to fifteen percent (15%) of the remaining due sums, plus interest and penalties defined in section 4.4 and additional Court or legal fees. In addition, SPARKS & CO shall be entitled to suspend or terminate any ongoing Service without prejudice.

4.6 The Client has not the right to retain or defer the payment of any remaining due sums to SPARKS & CO, even in case of dispute or claim.

SECTION 5 – IMPLEMENTING RULES OF SERVICES

5.1 Implementing rules of services are strictly defined in the Order.

5.2 SPARKS & CO’s staff might provide Services in the Client’s premises. If so, the staff shall comply to health and safety policy established in so called premises, unless the Parties agreed upon different measures in writing.

5.3 In any case, SPARKS & CO’s staff shall only depend on the hierarchic and disciplinary authority of SPARKS & CO. It is specifically stated that SPARKS & CO’s staff provides independent Services as part of the initial Order. SPARKS & CO remains independent of the Client and assure that no subordinate relationship type exists between the company and the Client, nor between SPARKS & CO associates and the Client.

5.4 As part of section 5.2, the Client has to provide to SPARKS & CO a workstation (desk, chair, computer with mandatory software, etc.), give access to its premises and to any necessary information the Provider needs in order to complete the Order.

5.5 The Order is valid until the end of the scheduled established in the Order.

5.6 The end date can be postpone at the Client’s request after establishing an agreement between the Parties in writing. The agreement shall define the new terms, such as modification, extension of Service, delay or omission by the Client or a third part, and/or due to force majeure as seen in section 13.

SECTION 6 – SCHEDULE AND PROGRESS MEETING

6.1 Progress meeting can be held at any Party’s request, in accordance with jointly agreed modalities defined in the Order, in order to review the progress of the Service and to validate what has already been done. Any discrepancy between the Service planned in the Order and the Service the Client needs can lead to the establishment of an allowance. During those meetings, the Client can offer his views, recommendations, advices, technical choices or any observation.  

6.2 After those meetings, a person of responsibility chosen by SPARKS & CO shall draw a progress report and address it directly to the Client. If the Client fails to respond within fifteen (15) days, the report is considered approved as well as the executed Services.

SECTION 7 – CONTRACTUAL PERIOD AND EARLY TERMINATION

7.1 If either Party commits partial or complete non-fulfillment, improper execution or a material breach of the provisions of these GTCS or the Order, and at the exception of section 7.2, the other Party shall be released from its obligation without the necessity for judiciary procedures and without prejudice to the right it could claim for damages.

7.2 Either Party is entitled to cancel the Order by submitting a formal notice by registered letter with an acknowledgment of receipt. If the other Party does not respond within a period of thirty (30) days after the acknowledgment of receipt, should (i) the other Party had ceased its activity or, (ii) the other Party is no longer solvent or faces compulsory liquidation or legal redress.

7.3 In case of cancellation of the Order by the Client in other circumstances provided by sections 7.1 and 7.2, the Client has to meet the deadline of thirty (30) days and has to compensate SPARKS & CO for remaining due sums within the end of the schedule the Parts agreed upon and to reimburse any charge SPARKS & CO already invested to fulfill the Service that was intended. The decision of cancellation shall be submitted by registered letter with an acknowledgment of receipt with a minimum of thirty (30) days’ notice, as written in section 7.2.

7.4 Any document SPARKS & CO provides to the Client as part of the contract shall be returned at the end of the Service. The Client is not entitled to keep a copy of it.

SECTION 8 – INTELLECTUAL PROPERTY

8.1 Either Party shall keep the full property of the descriptions, software, plans, designs and other documents as well as the methods, knowledge, expertise and tools they developed and owned.

8.2 In case a third party claims the ownership of equipment, documents, patents or any other intellectual or industrial property matter used as part of the Order, the Party that provided these disputed equipment, documents or material shall take the full responsibility and and assume the legal and financial consequences.

8.3 Any work, study or documentation developed as part of the Service shall be the Client’s exclusive property, even if created within the partnership between SPARKS & CO’s staff and the Client’s. As a result, the Client is the only one entitled to claim the ownership of a patent, model & design, brand, or any title of intellectual property in the above-mentioned fields. The Order shall not stop SPARKS & CO from using the expertise and know-how it acquired within contract with the Client, even if used to develop a competitive solution to what was made for the Client, and this without any financial counterparts to the Client. However, SPARKS & CO undertakes not to reproduce in its future Services, all or any original elements it created exclusively for the Client as part of the Services it provides.

SECTION 9 – NON-SOLICITATION

Unless an express and opposite agreement between the Parties, the Client undertakes not to hire, or put to work in any way, directly or indirectly through a third party or subsidiary company, any current or future SPARKS & CO’s associate who worked on the Order and even if the solicitation is on the associate’s own initiative. This waiver is valid for the period of Service plus an additional period of twelve (12) months. In case he breaks the clause of non-solicitation, the Client undertakes to pay a compensatory allowance equal to one (1) year of above-mentioned associate’s gross salary, plus social charges and to compensate SPARKS & CO of any further prejudice.

SECTION 10 – OBLIGATIONS AND CONFIDENTIALITY

During negotiations, Order execution and until the end of the contract, the Parties undertake not to disclose nor to allow any disclosure by a member of their staff of any information or document they received from the other Party, regardless of the method of access, as part of the Order, unless to a third party, undertaken under the same conditions not to disclose any confidential information or document if, and only if, the disclosure is necessary in order to fulfill the Order. Either Party commits not to use any information in its own or a third party’s interest. The above-mentioned commitment is invalid if (i) a document has already entered the public domain without any breach mentioned in this section, (ii) one of the party owned the information or the document prior to any mention or meeting, (iii) when the information or the document is obtained through an authorized third party, or (iv) it has to be disclosed when needed, but only before courts, tax and social administrations authorized to claim this kind of information or document. The Client shall give access to any premises, information or documentations SPARKS & CO sees fit in order to provide its Services.

SECTION 11 – ANTI-ASSIGNEMENT

The Order between SPARKS & CO and the Client is concluded “intuitu-personnæ”, due to the Client’s nature. Therefore, he undertakes not to cease all or part of the rights and obligations conferred on him by the current Order, regardless of any circumstance, form or people, unless an express an written agreement between the Parties. In case of handover or transfer of activities to a third party, SPARKS & CO reserves the right to immediately terminate the Order in its own right, without having to pay any compensatory allowance.

SECTION 12 – RESPONSIBILITY

A. WARRANTY AND INSURANCE
12.1.1 SPARKS & CO ensures  a performance guarantee to its Client, as defined in the Order, in accordance to the rules and good consultancy practices. The SPARKS & CO company undertakes to put any means necessary in place in order to provide the intended outcome. The warranties granted herein are the only warranties at the expanse of SPARKS & CO. No other warranty shall prevail.

12.1.2 SPARKS & CO undertakes to subscribe wholly to any warranty in order to cover its responsibilities while delivering the Order from a financially sound and reputable insurance carrier.

B. LIMITATION

12.2.1 SPARKS & CO commits itself only to an obligation of means to the Client.

12.2.2 The Client assures that SPARKS & CO does not respond to any subordinate relationship. The Provider’s opinion is purely consultative. Consequently, SPARKS & CO cannot be held responsible.

12.2.3 SPARKS & CO cannot be held responsible for any damages originating from documents or information provided by the Client, especially if SPARKS & CO first raised useful reservations in the matter.

12.2.4. In case SPARKS & CO is being held responsible when the Order is canceled, the Client shall claim for damages, limited to the stated price exclusive of VAT or other taxes, regardless of the nature of the prejudice.

12.2.5 SPARKS & CO’s overall responsibilities are therein limited to direct financial damages inflicted to the Client. SPARKS & CO’s fault has to be duly proved. In no other circumstances shall SPARKS & CO be obligated to pay for incidental damages whether consequential or not, including: operating losses, production losses, shortfall, the loss of profits, the loss of contracts, the loss of image, the loss of an opportunity, commercial prejudice, additional production costs, staff or equipment immobilization, as well as any other indirect damage.

12.2.6 In any case, SPARKS & CO’s overall responsibility, apart from physical injury, deceit or gross misconduct (as defined in the French Laws) shan’t exceed twenty percent (20%) of the Order’s stated price, exclusive of VAT or other taxes.

SECTION 13 – FORCE MAJEURE

The fulfillment of either Party’s obligation presented therein shall be suspended in case of a Force Majeure Event in its usual acceptance as to the extent to which this term refers, including but not limited to: natural catastrophes, actions perpetrated by public authorities, embargos, strikes, exceptional weather conditions causing delivery issues, insurrections, riots.  Any Party may invoke such event. If so, the Party has to immediately notify the other one the beginning and possibly the end of any above-mentioned event in order to discharge itself of its liability. Both Parties shall make an effort to prevent or reduce the negative impact caused by this event. The other Party reserves the right to double-check the reality of these facts. The fulfillment of the Party’s obligation resumes at the end the Force Majeure Event. If the event lasts longer than one (1) month, the Party to whom the Force Majeurs has been opposed shall immediately cancel the Order in its own right and without having to pay any compensatory allowance.

SECTION 14 – SALOMONIC CLAUSE

The Parties agree that should a dispute arise over the interpretation of any clause of these GTCS, the interpretation given in court shall prevail. These GTCS may subsequently be modified. Should one of the clauses above or part of one of the clauses above be legally invalid, validity of the other clauses of these General Terms remains unaffected.

SECTION 15 – PROTECTION OF PERSONAL DATA AND PRIVACY

Any information asked by SPARKS & CO when the Order is placed is mandatory. If either one or more mandatory information is missing, the Order couldn’t be issued. In accordance with the French law known as the Data Protection Act of January 6th, 1978, amended by the act of August 6th, 2004, the Client has a right to access, rectify or oppose his/her/its personal data via a letter send directly to SPARKS & CO – 66 avenue des Champs Élysées, Espace 41, 75008 Paris.

SECTION 16 – LANGUAGE OF THE CONTRACT, GOVERNING LAW
AND COMPETENT JURISDICTION

16.1 These GTCS and/or the Order might be drawn up in more than one language. Should a dispute arise over the interpretation of these GTCS and/or the Order, the French text shall prevail as a reference. The governing language of these GTCS and the Order is French.

16.2 These GTCS and the Order shall be governed, construed, and enforced in accordance with the French law, without regard to its conflict of laws rules. Failing amicable agreement, any dispute concerning the validity, the interpretation, the fulfillment, the cancellation, the consequences and implications of these GTCS or the Order shall fall upon the jurisdiction of the Trade Court (Tribunal de Commerce) of Paris, even in the event of the introduction of third parties or plurality of defendants.