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General Terms of Service , Grafikoa
Updated January 18, 2024”
Introductory Provisions
Article 1. Definitions
Terms beginning with a capital letter in these Terms and Conditions of Service, whether used in the singular or the plural, shall have the meaning given to them below.
Subscription: means GRAFIKOA’s offer consisting in providing the Client with a set of Services for an indefinite period, in return for the Client’s payment of a fixed monthly fee. GRAFIKOA offers several Subscriptions detailed in the appendix. The Services provided and the price vary depending on the Subscription selected.
TCS: means these Terms and Conditions of Service, which specify the terms of the Contract, in addition to the Quotation.
Client: means any natural or legal person who orders Services from GRAFIKOA.
Client Content: means any element provided by the Client for the performance of the Services and in particular any brand guidelines, logo, image, illustration, photograph, text, etc.
Contract: means the contract formed by the Client’s acceptance of the Quotation, under which GRAFIKOA undertakes to perform Services and the Client undertakes to pay the Price, and the terms of which are specified by the TCS and the Quotation.
Quotation: means GRAFIKOA’s offer made to the Client, which describes the Services proposed to the Client, the applicable price, and any special conditions negotiated by the Client.
GRAFIKOA: means the simplified joint stock company GRAFIKOA, registered with the Rennes Trade and Companies Register under number 920 366 077, with a share capital of 1,000 euros, whose registered office is located at 2 allée Alexander Bell 35230 NOYAL-CHATILLON-SUR-SEICHE.
Deliverable: means any item delivered to the Client by GRAFIKOA and created by GRAFIKOA as part of the performance of the Services, and in particular any brand guidelines and printed or digital communication material.
Party (Parties): means in the singular, the Client or GRAFIKOA; in the plural, the Client and GRAFIKOA.
Services: means the Services for creating graphic identities and brands and/or printed or digital communication materials provided by GRAFIKOA and involving the delivery of Deliverables.
Article 2. Purpose
The TCS define the conditions under which GRAFIKOA provides the Services to the Client and the obligations of each of the Parties in this context.
Article 3. Contractual documents
The Contract consists of the following documents, listed in order of precedence, and hereinafter referred to as the “Contractual Documents”:
The Quotation.
The TCS.
The appendices to the TCS:
Appendix – Details of the Subscriptions offered.
These Contractual Documents constitute the entire agreement between the Parties and establish all of their rights and obligations in relation to the subject matter of the TCS.
Conversely, any other document, and in particular any catalogue, brochure, advertisement, or notice, is for information purposes only and not contractually binding.
The Contractual Documents replace any prior document exchanged between the Parties, and in particular any correspondence, sales literature, offer, preliminary agreement, or the Client’s general purchasing terms.
No prior statement, representation, promise, or condition not contained in the Contractual Documents may or should be admitted to contradict, modify, or affect in any way the terms of the Contractual Documents.
In the event of any inconsistency between the Contractual Documents, the document listed first in the order of precedence shall prevail.
Any amendment to the TCS after they enter into force must be accepted by the Client to be enforceable against the Client. Generally, no Contractual Document may be amended without the mutual agreement of the Parties.
Article 4. Effective date of the Contract – Term
The Contract between the Parties is formed by the Client’s acceptance of GRAFIKOA’s Quotation.
The Client should preferably accept by signature. However, the Client’s acceptance of the Quotation may be given by any means, including by beginning payment of the price set out in the Quotation.
The Client’s acceptance of the Quotation constitutes full and unreserved acceptance of the TCS, available on GRAFIKOA’s website at the URL <www.grafikoa.com>.
The Contract is concluded for a term:
Either fixed, for the time required to perform the ordered Service;
Or indefinite, with a minimum commitment period of three (3) months, if the Client subscribes to a Subscription.
The Contract may be terminated under the conditions set out in the TCS.
Article 5. Professional Client
The TCS exclusively govern the performance of Services by GRAFIKOA for the benefit of a professional Client acting within the scope of its main professional activity.
THEREFORE, THE PROTECTIVE PROVISIONS OF THE FRENCH CONSUMER CODE, IN PARTICULAR ARTICLE L221-3 OF THE FRENCH CONSUMER CODE, DO NOT APPLY TO THE CLIENT. THE CLIENT CANNOT BENEFIT FROM A RIGHT OF WITHDRAWAL.
Services
Article 6. Description of the Services
GRAFIKOA specializes in creating (i) visual identity and brand, and (ii) printed or digital communication materials, regardless of the nature of the medium.
The visual identity and brand creation Service may consist of:
Imagining a logotype to identify the Client’s company or its activity.
Defining combinations of colors and typefaces by which the Client will be recognized.
Designing various graphic elements specific to the Client (patterns, illustrations, motifs, etc.).
Creating a name that will be used by the Client as a distinctive sign to identify its company, its activity, and/or its products and services (e.g., corporate name, trade name, business name, trademark, domain name, etc.).
The printed or digital communication material creation Service consists in imagining visuals that the Client may have applied to media of any kind, for communication, advertising, or commercial purposes (e.g., posters, brochures, PowerPoint presentation, white paper, website, packaging, shop windows, etc.).
The Services for creating visual identity and brand and for creating printed or digital communication materials involve GRAFIKOA delivering Deliverables to the Client, in a digital format, in accordance with industry standards.
Article 7. Exclusions
GRAFIKOA’s Services do not include the following services, which are the responsibility of the Client:
Clearance searches to ensure the availability of the name chosen by the Client as a distinctive sign. GRAFIKOA strongly advises the Client to carry out such searches through a competent service provider (legal counsel, lawyer), since GRAFIKOA does not guarantee that no prior right exists in the name created by GRAFIKOA that could hinder its use by the Client.
The technical development of the Client’s website or web or mobile application. GRAFIKOA’s Services are limited to the design of their user interfaces.
The reproduction of the Deliverables (e.g., by printing, application, broadcasting, etc.) on the chosen medium.
Article 8. Performance terms
GRAFIKOA undertakes to perform the Services identified in the Quotation professionally, in accordance with industry standards, and in compliance with the Contract. The Quotation may specify the nature and procedures of these Services.
Any change to the scope of the Services, as stated in the Quotation, and in particular any order for Services not included in the Client’s Subscription, may be subject to additional billing.
GRAFIKOA assigns a specifically identified graphic designer to the Client. This graphic designer oversees the Client’s project(s) and performs the Services. The graphic designer keeps the Client informed of any potential difficulty encountered in performing the Services. If the graphic designer changes during performance of the Contract, GRAFIKOA will inform the Client within a reasonable time.
GRAFIKOA gathers the Client’s needs and expectations prior to creating the Deliverable and takes them into account when performing the Service. In particular, GRAFIKOA provides three (3) concepts or mock-ups to the Client and requests feedback before working on the final version of the Deliverable.
To facilitate the performance of the Services and their monitoring, GRAFIKOA provides the Client, directly or through a service provider, with a web portal allowing the Parties to communicate with each other and exchange any useful file or information.
The Parties may agree on a schedule for delivery of the Deliverable. If so, the schedule is provided for guidance only, unless the Parties agree otherwise.
Unless a Subscription has been taken out, the Client has a period of one (1) month from receipt of the Deliverable to verify that it is suitable and complies with the Contractual Documents. If necessary, GRAFIKOA will amend the Deliverable taking into account the Client’s feedback, up to a limit of one (1) new version.
Any request for an additional version or made by the Client outside the aforementioned one (1) month period is subject to billing and will be the subject of a new Quotation.
A Client who subscribes to a Subscription may request as many amendments to the Deliverables as they wish.
Article 9. Subcontracting
GRAFIKOA reserves the right to subcontract to a third-party provider or partner all or part of the performance of the Services, which the Client expressly acknowledges.
Financial Terms
Article 10. Price – Expenses
The prices invoiced to the Client, after deduction, where applicable, of any applicable discounts, rebates, and reductions, are those set out in the Quotation (hereinafter the “Price”).
The Price is denominated in euros and is expressed excluding taxes.
Depending on the case, the Price takes the form of:
A fixed fee;
Monthly installments in the event of a Subscription.
Expenses are not included in the Price. They are borne by the Client upon presentation of supporting documentation.
Article 11. Price revision (Subscription)
In the event of a Subscription, the Price may be revised based on the SYNTEC index each year on the Contract anniversary date and by applying the following formula:
P = Po × S / So.
P = price after revision.
Po = initial price for the first revision, then the price resulting from the previous revision for subsequent revisions.
S = most recent SYNTEC index published on the date of the Price revision.
So = value of the SYNTEC index in force on the date the Contract was concluded for the first revision, then the value of the SYNTEC index on the day of the previous revision for subsequent revisions.
If one or the other of the indices ceases to exist, the Parties will agree on the new index or indices by establishing a formula with a comparable effect.
Article 12. Payment
GRAFIKOA sends its invoice to the Client at the email address stated on the Quotation.
Services are invoiced as follows:
Outside a Subscription: the Price is invoiced in full upon delivery of the initial version of the Deliverable.
Subscription: once (1) per month, in the amount of the due installment.
Payment is due immediately:
Outside a Subscription: within thirty (30) days from receipt of the invoice.
Subscription: on the due dates included in the Quotation.
No discount is granted for early payment.
Payment is made by SEPA direct debit. To this end, the Client signs a direct debit authorization (hereinafter the “SEPA Mandate”) and provides GRAFIKOA with a bank account identification document showing its banking details in IBAN format.
GRAFIKOA carries out SEPA direct debits on the basis of this SEPA Mandate. In the event of a direct debit being rejected by the Client’s bank, bank charges are borne by the Client.
The Client may contest with its bank an authorized debit within eight (8) weeks from the date the account was debited and an unauthorized debit within thirteen (13) months from the date the account was debited. If the contestation proves to be unfounded, GRAFIKOA reserves the right to charge the Client administrative fees.
In the event of modification or revocation of the SEPA Mandate, the Client must send its request to GRAFIKOA at the address stated in Article 1 of the TCS. Any request to revoke the SEPA Mandate must be accompanied by the designation of another means of payment.
Article 13. Late payment
In the event of late payment, for any reason whatsoever:
Amounts owed by the Client shall automatically bear, from the due date and without prior formal notice, late payment interest calculated daily at a rate equal to three (3) times the legal interest rate.
The Client shall pay GRAFIKOA a fixed indemnity of forty (40) euros for recovery costs in accordance with Articles L 441-10 and D 441-5 of the French Commercial Code.
GRAFIKOA reserves the right, under the conditions set out in the TCS, to suspend performance of the Services until full payment of the amounts owed by the Client.
Client Obligations
In addition to paying the Price for the Services within the agreed time limits, the Client is subject to the following obligations:
Article 14. Cooperation
The Client undertakes to cooperate fully with GRAFIKOA and in particular to:
Provide any information, as well as any Client Content, necessary for the performance of the Services.
Answer GRAFIKOA’s questions and make the necessary validation decisions.
Provide GRAFIKOA with complete and accurate information and documents.
Designate, if necessary, a contact person empowered to make decisions.
The Client shall act in due time so as not to compromise the schedule possibly agreed between the Parties, in particular if the Parties have made it binding. Failing this, GRAFIKOA cannot be held liable for any delay in the performance of the Services.
Article 15. Non-solicitation – Non-hiring
The Client undertakes not to solicit, hire, engage, or otherwise retain the services, directly or indirectly, of any GRAFIKOA employee. This undertaking applies during the term of the Contract and for a period of six (6) months following its end. Failing this, the Client must immediately pay GRAFIKOA an amount equal to one (1) year of the gross remuneration of the employee concerned, as a penalty.
For the purposes of the Contract, a former employee whose employment contract with GRAFIKOA ended more than one (1) year ago, for any reason whatsoever, shall not be considered an employee and their hiring shall therefore not give rise to the application of the penalty clause mentioned above.
Personal Data & Confidentiality
Article 16. Confidentiality of exchanged information
Each Party undertakes to maintain the strictest confidentiality, throughout the term of the Contract and for a period of two (2) years following its end, regarding all information and data received from the other Party or to which it has access within the framework of the Contract thanks to the other Party, regardless of their nature, form, medium, and means of transmission (hereinafter “Confidential Information”).
Client Content, Deliverables, as well as any economic or commercial information of a Party or relating to its know-how, are notably considered Confidential Information.
Accordingly, each Party undertakes to (i) use the Confidential Information solely for the performance of the Contract and the Services; (ii) take all necessary measures to preserve the secrecy and security of the Confidential Information; (iii) not copy or incorporate the Confidential Information into its own records or databases, except to the extent necessary within the framework of the Contract; (iv) immediately inform the owning Party of any breach of confidentiality obligations and provide any assistance to minimize the effects of such breach.
GRAFIKOA ensures that all its staff comply with these confidentiality commitments.
The Party disclosing Confidential Information is not in breach (i) if the disclosure has been authorized by the other Party; (ii) if disclosure is required under applicable laws and regulations; or (iii) if it acts pursuant to a court order or an administrative or supervisory authority. The owning Party shall be informed beforehand.
Lastly, information or data are not considered Confidential Information and are therefore not subject to the above obligations if (i) they are publicly available prior to or after their disclosure, in the absence of any fault, or (ii) received from a third party free to disclose them and lawfully, or (iii) developed in good faith independently of any access to the Confidential Information, or (iv) expressly designated in writing by their owner as non-confidential.
Article 17. Client personal data
GRAFIKOA processes personal data of the Client’s representatives and employees who are natural persons, as data controller, within the meaning of the applicable regulations on the protection of personal data and in particular Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016.
More specifically, the personal data of the Client’s representatives and employees are used to (1) manage the Parties’ commercial relationship and the performance of the Services; (2) prospect the Client; (3) manage invoicing and unpaid amounts; (4) manage complaints and disputes.
The Client’s representatives and employees have various rights over their Personal Data, including rights of access, rectification, and objection, which they may exercise by contacting GRAFIKOA.
The Client undertakes to inform its employees of these provisions.
Intellectual Property
Article 18. Distinctive signs
Each Party remains the holder of its intellectual property rights over its corporate names, business names, trade names, verbal or figurative trademarks, domain names, or other distinctive signs (hereinafter “Distinctive Signs”).
A Party’s Distinctive Signs may not be used by the other Party except within the framework of and for the purposes of performing the Services and as a sales reference.
Any other use of a Party’s Distinctive Signs must be previously authorized in writing by the Party concerned.
Article 19. Client Content
Client Content remains the full and entire property of the Client. The Contract does not create any rights, including intellectual property rights, for the benefit of GRAFIKOA over the Client Content.
The Client authorizes GRAFIKOA only to reproduce, represent, modify, adapt, translate, use, and store, at no cost, the Client Content within the framework of and for the purposes of performing the Services, for the term of the Contract and worldwide. This license is granted regardless of the format, medium, and process used, whether known or unknown as of today.
The Client warrants to GRAFIKOA that the Client Content does not infringe third-party rights, including intellectual property or personality rights. The Client therefore warrants that it holds the necessary rights to grant GRAFIKOA a license over the Client Content under the above conditions and, where necessary, that it has obtained authorization from the holders of the rights concerned. Failing this, the Client shall defend, hold harmless, and indemnify GRAFIKOA.
At GRAFIKOA’s request, the Client undertakes to provide any proof of its rights or of the authorization obtained.
Article 20. Deliverables
20.1. Assignment
Upon full payment of the Price, GRAFIKOA assigns to the Client, on an exclusive and irrevocable basis, all of its intellectual property rights in the Deliverables and, more specifically, under copyright, the rights to reproduce, represent, adapt, translate, distribute, exploit, and use the Deliverables, as detailed below:
Right of reproduction: the right to reproduce, fix, record, without limitation (including as to number), all or part of the Deliverables, including in an adapted or translated form, directly or through third parties, by any technical process, on any medium, including paper, magnetic, optical, videographic, or digital, in any format, known or unknown as of today.
Right of representation: the right to represent, broadcast, make available, or communicate to the public, without limitation (including as to number), all or part of the Deliverables, including in an adapted or translated form, directly or through third parties, by any process, and in particular by display, radio broadcast, television broadcast, via the Internet, on any medium and in any format, known or unknown as of today.
Right of adaptation: the right to adapt or have adapted all or part of the Deliverables, the right to correct them, to update them, to create new versions, to modify them, digitize them, port them to any configuration, merge or interface them with any software, databases, or IT products, the right to integrate them into or into existing or future works of any kind, of the same or different genre, by any process, for any hardware and operating system.
Right of translation: the right to translate all or part of the Deliverables into any other language known or unknown as of today.
Right of use: the right to use, for personal purposes or for the benefit of third parties, for consideration or free of charge, without limitation (including as to number), all or part of the Deliverables, including in an adapted or translated form, for the purposes of carrying out any form of processing, for any purpose whatsoever, by any means or process, on any medium, including paper, magnetic, optical, videographic, or digital.
Right of distribution: the right to place on the market, distribute, or commercialize, without limitation (including as to number), all or part of the Deliverables, including in an adapted or translated form, in particular in the form of a secondary or derivative creation, by any means or process, including rental and lending, regardless of the medium and format, free of charge or for consideration.
Right of exploitation: the right to grant to third parties, free of charge or for consideration, on a temporary or definitive basis, all or part of the assigned rights in all or part of the Deliverables, including in an adapted or translated form, by any means and in particular by license or assignment.
Right to file and register all or part of the Deliverables, including in an adapted or translated form, as a design, trademark, domain name, and/or any other intellectual or industrial property right whatsoever, including the right to integrate all or part of the Deliverables into a patentable invention and to include all or part of the Deliverables in any patent application or in any proceedings before any intellectual property office.
This assignment (the “Assignment”) allows the Client to freely exploit the Deliverables, both in the context of its private and commercial activity, for any useful purposes and in particular for advertising and communication, regardless of the format, medium, or process used, whether known or unknown as of today.
The assignment is granted worldwide and for the entire term of the intellectual property rights concerned.
The Parties have agreed that GRAFIKOA’s remuneration in consideration for the assignment of the Deliverables is included in the Price of the Services. GRAFIKOA’s remuneration is a fixed amount since the basis for calculating a proportional participation in the Client’s exploitation of the Deliverables cannot be practically determined.
20.2. Moral rights
GRAFIKOA retains its moral rights in the Deliverables and, more specifically, its rights (i) to be named, (ii) to the respect of its status as author, and (iii) to the integrity of its work and creations.
The Client therefore undertakes not to distort the Deliverables when exploiting them and to credit GRAFIKOA as the author of the Deliverables as follows: GRAFIKOA_First name LAST NAME of the designer_design created.
20.3. Warranty of quiet enjoyment (excluding Client Content)
GRAFIKOA warrants that (i) it holds the rights assigned in the Deliverables; or (ii) it has obtained the necessary authorizations from the holders of the rights concerned to be able to assign them; or (iii) that the Deliverables, or the elements composing them, are available.
Failing this, GRAFIKOA shall defend the Client in any legal action or arbitration proceedings brought on the grounds that the Deliverables infringe third-party intellectual property rights and/or that their exploitation constitutes an act of unfair competition or parasitism.
Where applicable, GRAFIKOA shall bear:
Any damages, costs, and expenses of any kind that the Client may be ordered to pay or charged under a final court or arbitration decision;
All costs and expenses incurred by the Client in its defense in such legal action or arbitration proceedings.
Finally, if such action or proceedings have the effect of prohibiting the Client from holding all or part of the intellectual property rights assigned under the Contract, GRAFIKOA shall, at its expense:
Either obtain the right for the Client to hold said rights;
Or replace or modify the disputed elements of the Deliverables at its expense, no later than within thirty (30) days, so as to eliminate any risk of infringement, unfair competition, or parasitic acts.
If GRAFIKOA is unable to offer either of these two alternatives, the Client may seek compensation for any loss before the court.
THIS WARRANTY DOES NOT COVER CLIENT CONTENT. SIMILARLY, GRAFIKOA CANNOT BE HELD LIABLE IF THE NAME PROPOSED TO THE CLIENT AND CHOSEN BY THE CLIENT AS A DISTINCTIVE SIGN IS NOT AVAILABLE AND IS THE SUBJECT OF A CLAIM, ACTION, OR PROCEEDINGS BROUGHT BY A THIRD PARTY. IT IS THE CLIENT’S RESPONSIBILITY TO VERIFY THE AVAILABILITY OF THE CHOSEN SIGN AND THE ABSENCE OF PRIOR RIGHTS THAT MAY HINDER ITS USE, AS MENTIONED ABOVE.
Article 21. Sales reference
The Client authorizes GRAFIKOA, throughout the term of the Contract and for a period of two (2) years thereafter, to mention its Distinctive Signs on its website, its social media accounts, and in its sales literature, as references for the purposes of GRAFIKOA’s sales promotion.
GRAFIKOA may accompany this mention, where applicable, with a generic description of the Services performed, without prejudice to the confidentiality obligations of the Contract, as well as with a reproduction of the Deliverables, or even of the Client Content included in these Deliverables, provided that they have been made publicly available by the Client.
Liability
Article 22. Liability
22.1. Obligations of means and of result
GRAFIKOA undertakes to deliver to the Client the Deliverable agreed for the Service ordered by the Client. In this respect, GRAFIKOA’s obligation constitutes an obligation of result.
However, as GRAFIKOA’s Services have an artistic and aesthetic dimension that is necessarily subjective, GRAFIKOA is only required to use its best efforts to meet the Client’s needs and expectations when developing these Deliverables. In this regard, GRAFIKOA’s liability is therefore an obligation of means.
22.2. Limitation of liability clause
GRAFIKOA’s liability shall only be incurred if it is established (i) that the alleged damage results from its own act, and (ii) that there is a direct and certain causal link between the alleged fault and the damage.
Under no circumstances shall GRAFIKOA be liable for any indirect or unforeseeable damage suffered by the Client, which includes, without limitation, any loss of profit, loss, inaccuracy, and/or corruption of files or data, commercial harm, loss of turnover or profit, loss of customers, loss of opportunity, cost of data recovery, damage to image, or any other moral prejudice.
Furthermore, if GRAFIKOA’s liability were incurred by the Client under the Contract for direct damage suffered by the Client, the Client’s right to compensation would be limited, for all causes combined and for the entire term of the Contract, to the amounts guaranteed and covered by GRAFIKOA’s professional liability insurer, per claim and/or per insurance year.
These limitations or exclusions of liability do not apply in the event of (i) death or bodily injury or (ii) gross negligence or willful misconduct.
Finally, claims brought against the Client by a third party, related to or arising from the performance or non-performance of its obligations and more generally of the TCS by the Client do not give rise to any compensation from GRAFIKOA.
GRAFIKOA’s liability is also excluded in the event of use of the Deliverables for a purpose or in a context different from that which was presented to GRAFIKOA, or of incorrect implementation of recommendations or failure to take into account GRAFIKOA’s reservations.
Article 23. Force majeure
The Parties shall not be held liable and no compensation may be claimed from them for any failure or delay in the performance of any of their obligations under the Contract due to the occurrence of a force majeure event.
Only an event meeting all of the following conditions may be considered a force majeure event:
The event must be beyond the control of the Party invoking it.
The event could not reasonably have been foreseen when the Contract came into force.
The effects of the event cannot be avoided by appropriate measures.
The event prevents the Party invoking it from performing its obligation.
When a Party observes the event, it shall inform the other Party by written notice as soon as possible and no later than ten (10) calendar days from the occurrence of the force majeure event preventing it from performing its obligations.
The obligations whose performance is rendered impossible by the occurrence of a force majeure event shall be suspended for the duration of this event, unless the event definitively prevents performance of the Services or causes a delay making the time for performance of the Services incompatible with their purpose. In such a case, the Contract may be immediately terminated by either Party by sending a registered letter with acknowledgment of receipt to the other Party.
Apart from these situations, the Contract may be terminated by a Party if performance of the Services has been suspended for more than two (2) months from notification of the force majeure event, by sending a registered letter with acknowledgment of receipt to the other Party.
Article 24. Insurance
Each Party declares that it is insured, in particular for professional liability, with a reputedly solvent insurance company and undertakes to keep all insurance policies up to date, to cover any damage caused to the other Party or to any third party and arising from the performance or non-performance of the Contract.
GRAFIKOA undertakes to provide the Client, upon first request, with the corresponding insurance certificates that are valid.
End of the Contract
Article 25. Termination without breach
When the Contract is concluded for an indefinite term (that is, if the Client subscribes to a Subscription), each Party may terminate it at any time, upon expiry of a minimum commitment period of three (3) months, subject to a notice period of two (2) months, by sending a registered letter with acknowledgment of receipt.
It is expressly stipulated that the Parties shall remain bound by their respective obligations during the notice period and, in particular, as regards the Client, by its obligation to pay the Price. Specifically, the monthly installment due by the Client must be paid in full for any month begun during the notice period.
In addition, each Party may terminate the Contract early, without any breach, in the event of force majeure, transfer of the assets of one Party to a third party competitor of the other Party, or one Party being taken over by a third party competitor of the other Party. Reference is made to the relevant clauses for the implementation of termination in these situations.
Article 26. Termination for breach
When a Party fails to comply with one or more of its obligations under the Contract, the aggrieved Party shall give formal notice to perform within a maximum period of thirty (30) days, by registered letter with acknowledgment of receipt.
In particular, failure by the Client to pay the Price within the agreed time limits constitutes a breach likely to result in termination of the Contract.
In addition, GRAFIKOA reserves the right to suspend performance of its Services in the event of the Client’s breach of its obligation to pay the Price.
Services will resume only after settlement of the Client’s debt in principal, costs, and interest, including installments accrued during the suspension period, which will remain due.
If the other Party fails to perform within the allotted time, the aggrieved Party shall terminate the Contract by sending a second registered letter with acknowledgment of receipt.
This provision is without prejudice to any damages to which the aggrieved Party may be entitled.
Article 27. Consequences of the end of the Contract
Except in cases of termination with immediate effect, each Party remains bound to fulfill its contractual obligations until the effective date of termination.
The end of the Contract does not affect clauses specifically intended to govern any situation of contractual non-performance and/or the post-contract period. These clauses remain in force for their respective durations.
GRAFIKOA shall return to the Client all original documents that were provided by the Client.
Dispute Resolution
Article 28. Interpretation – Language – Governing law
Only the French language version of the TCS shall prevail in the event that interpretation is required, to the exclusion of any other language versions.
Furthermore, as the Contract is governed by French law, it shall be interpreted in accordance with that law.
Article 29. Amicable settlement
Any dispute or disagreement relating to the formation, validity, interpretation, or performance of the Contract must first be resolved amicably between the Parties.
The Parties therefore undertake to find in good faith, within sixty (60) days from the occurrence of the dispute notified by registered letter with acknowledgment of receipt sent to the other Party by the more diligent Party, an amicable, concrete, precise, and feasible solution.
Article 30. Competent court
IN THE EVENT OF ANY DISPUTE AND FAILING AN AMICABLE AGREEMENT UNDER THE ABOVE CONDITIONS, EXPRESS JURISDICTION IS GIVEN TO THE MATERIALLY COMPETENT COURTS OF RENNES, NOTWITHSTANDING MULTIPLE DEFENDANTS OR THIRD-PARTY PROCEEDINGS. THIS JURISDICTION ALSO APPLIES TO SUMMARY PROCEEDINGS.
Final Provisions
Article 31. Assignment of the Contract – Transfer of assets – Change of control
30.1. Assignment of the Contract alone. Assignment of the Contract by a Party to a third party is prohibited without the other Party’s authorization.
30.2. Transfer of the Contract as part of a transfer of assets – Takeover of a Party by a third party. The Party whose assets are transferred to a third party (for example in the context of a universal transfer of assets or a merger) or which is taken over shall inform the other Party before the transaction is carried out, by sending a registered letter with acknowledgment of receipt, addressed as strictly confidential.
The Party not concerned by the transaction may terminate the Contract by registered letter with acknowledgment of receipt if it turns out that the assets of the other Party are transferred to a third party competitor or that the third party taking control of the other Party is a competitor.
If applicable, termination of the Contract will take effect after a notice period of thirty (30) days, unless the Party seeking termination was informed late of the transaction or was never informed by the other Party. In this case, no notice period will be required.
If the Contract is not terminated within thirty (30) days from the date on which the Party not concerned by the transaction is informed of it by its co-contractor or, failing that, from the day on which it actually becomes aware of the transaction, the transfer of the Contract shall be deemed accepted and/or the Contract shall continue to apply.
Article 32. Independence
Each Party acts in its own name and on its own behalf under the TCS. The TCS are devoid of any affectio societatis and shall therefore have no effect on each Party’s independence with regard to the pursuit of its activity and corporate purpose, each Party continuing to exercise its management, rights, and obligations in full independence and to assume its responsibilities. No clause of the TCS shall be interpreted as creating between the Parties a relationship of agency, partnership, or subordination.
Article 33. Severability
The fact that any provision of the TCS is or becomes unlawful or unenforceable shall in no way affect the validity or enforceability of the other provisions hereof.
The Parties shall replace the invalid provisions with new provisions that are legally valid and as close as possible to the meaning and purpose envisaged from both legal and economic standpoints.
Article 34. Forbearance – No waiver
Any forbearance by either Party regarding the application of one or more clauses of the TCS shall never, regardless of its duration or frequency, be considered as a modification or removal of these clauses or be construed as a waiver of the right to invoke them.
