Article 1 – OBJECT
The present General Terms of Services, hereinafter the « GTS », aims at specifying the modalities and terms by which the Intellectual Property Consulting Firm Germain Maureau, SAS with a capital of 1 263 230 € whose headquarters is located at 12 rue Boileau 69006 Lyon registered under No. 387.830.045 RCS Lyon (hereinafter the « Provider »), provides to its Clients counseling, assisting, audit, research, representation and drafting services for the obtainment, the maintenance, the exploitation or the defense of industrial property rights and/or ancillary rights (hereinafter the « Services »).
The present GTS are expressly approved and accepted by the Client, who declares and acknowledges having a perfect knowledge thereof, and therefore waivers prevailing of any contradictory document and, in particular, his own general terms of purchase, which cannot be opposed to the Provider, even when the latter has already been aware of such document.
Article 2 – GENERALITIES
The provided Services are governed by the following contractual documents:
- The present GTS, that the Client acknowledges having been aware of as the quotation or the invoice makes reference to, can be consulted on the website of the Provider germainmaureau.com,
- The quotation established by the Provider and duly accepted by the Client, except for priced operations whose price is mentioned at the current general rate,
- Possibly, the Particular Terms explicitly granted by the Provider to the Client,
All these documents constitute the « Contract » concluded between the Provider and the Client. Consequently, it is addressed or submitted to the Client before starting the execution of the Services.
Without prior acceptance of the Provider in writing, no particular condition can prevail over the Contract. Hence, in the absence of an explicit acceptance, any contrary condition opposed by the Client cannot be opposed to the Provider, irrespective of the time at which it would have been notified to it.
Moreover, the provided Services are subjected to the legal, regulatory and ethical requirements laying down the conditions under which the Industrial Property Attorney profession is exerted.
The Provider retains the right to proceed, at any time and without prior notification, with every modification of the present terms that would be necessary.
The nullity or possible invalidity of any of the clauses of the present GTS has no influence on the validity of the other clauses. A failure in the strict application of these GTS by the Provider, at some point, does not entail any renunciation to invoke them later on.
Article 3 – CONCLUSION OF THE CONTRACT
3.1 Period of validity of the quotation
The proposals, offers and quotations are valid only during the period mentioned on the document / or, by default, during the two months that follow the date of their establishment, and should be understood in the context of the present GTS.
3.2 Validation of the Contract
The Contract enters into force no earlier than the acceptance of the quotation established by the Provider, formulated in writing by the Client.
For priced operations, the Provider will provide the Client who would ask for, with the current pricelist and, consequently, the Contract enters into force as soon as the Client submits his instructions to the Provider.
In the absence of an explicit approval of the Client, the acceptance of the Contract may, in very exceptional circumstances, result from its execution when usual contractual relationships existing between the Provider and the Client justify it.
3.3 Modification of the Contract
Possible modifications of the mission asked for by the Client will be taken into account, only if these are notified in writing, within a reasonable timeframe, after approval by the Client of a specific new quotation and possible adjustment of the price.
3.4 Duration of the Contract
The Contract is concluded for an indefinite period. It may be denunciated at any time by any of the parties provided that it gives reasonable notice.
Unless otherwise agreed, the Provider will be deemed relieved of all Services for which it has been mandated by the Client as of the receipt of the denunciation.
In case of denunciation of the Contract, the Client will have to immediately update the payment of all invoices owed to the Provider. Otherwise, the Provider can decline divesting, in favor of the Client or of a new representative of the latter, all official documents of which he would be the depository as well as all documents and information necessary for the execution or for the completion of the Services for which he has been mandated.
Article 4 – MODALITIES DE PROVISION OF THE SERVICES
The Provider makes a commitment to implement every means necessary for the proper execution of the Services.
Some Services may, by their underlying nature, be subject to execution periods previously agreed between the parties.
Whenever justified, the execution of the Services gives rise to the drafting of an account addressed by the Provider to the Client.
The Provider reserves the right to consider himself relieved of any liability relating to deadlines in the following cases:
- Non-provision or non-compliant provision by the Client in a timely manner of the necessary information, or of any other information item at the charge of the latter,
- Non-respect of the payment terms by the Client.
The Services include the provision of the Client with one administrator access or more to a Client Space accessible on the following link: https://episoft.germainmaureau.com/
It is the responsibility of the Client to keep his connection identifiers (email address and password) confidential. The Client is solely responsible for the use of his Client Space and of his connection identifiers. Any use of the Client Space, connection or data transmission performed via his Client Space will be deemed to have been performed by this Client and under his exclusive liability, unless a written and duly motivated notice is transmitted to the Provider.
The Provider shall not be held liable for any loss of one or several connection identifier(s) and, in the absence of a prior opposition regularly notified in writing, of the damaging consequences of the use of the Client Space by an unauthorized person.
Article 5 – EXECUTION DEADLINES
Unless a deadline is explicitly agreed on with the Client, the Provider is only required to execute the Services within the most reasonable deadlines and according to his possibilities. These deadlines then being given only but as indication, any delay shall not be considered as a ground for terminating the Contract or for contesting the amount owed for the Service.
When a request for an advance in accordance with Article 8 of the present GTS is formulated, any execution deadline explicitly agreed on with the Client should be understood as of the payment of said advance. Similarly, any execution deadline explicitly agreed on with the Client should be understood as of the provision by the latter of all information necessary for its completion.
Since some Services being subjected to an execution deadline imposed by an administration and/or by the industrial property regulations in force, the Client has to give his instruction on time, when asked for by the Provider, in order to respect the imposed deadlines and enable the Provider to carry out his mission with the due care it deserves.
The Client will be solely liable for the damages (including the loss of rights) that would result from instructions received after expiry of a term notified in writing by the Provider.
Article 6 – LIABILITY
The Provider makes a commitment to implement every means necessary for the proper execution of the Services and, in particular, to act, both in compliance with the legal and regulatory provisions in force and within the limits of the mandate conferred on him by the Client. Consequently, the Provider is subjected to an obligation of conduct and not an obligation of result.
In any event, the amount of a possible compensation charged to the Provider cannot be higher than the billing cost after tax paid by the Client.
In any case, the Provider shall not be held liable for the compensation of the direct or indirect and intangible damages subjected to the Client and in particular the loss of turnover, contracts, Customers, reputation, benefits, computer data, moral prejudice, etc.
In any case, shall the liability of the Provider be engaged in case of delay of suspension in the provision of the service attributable to the Client, or in the case of force majeure.
The Provider has taken out a professional liability insurance which covers the entirety of his activities and makes a commitment to communicate a certification thereof on simple request of the Client.
Article 7 – FINANCIAL TERMS
For any perfectly-defined service, the Provider can provide an estimate, for free, in response to a reasonable request. It should be understood that the cost of the services involving external providers or foreign currencies is given only but as an indication.
The cost of the taxes corresponds to that known at the time of establishment of the estimate.
As a matter of principle, the Services give rise to honoraries invoiced on the basis of a lump-sum amount, else, by application of an hourly rate.
The retained billing method is set by mutual agreement between the parties. It is mentioned on the quotation established by the Provider and duly accepted by the Client.
The invoiced honoraries are determined according to the quality of the members of the Provider’s team in charge of the execution of the Services, the difficulty of the mission and the nature of the accomplished Services.
Besides the remuneration of the completed Services, the parties may agree on a complementary honorary according on the obtained result or delivered service.
7.3 Official taxes and fees of the providers
The honoraries of the Provider do not comprise the external fees, taxes and honoraries to which the Provider is exposed for the needs of completion of the Services.
The external fees, taxes and honoraries are invoiced to the Client in addition to the honoraries of the Provider. To these fees, taxes and honoraries, are added fees relating to administrative, accounting and banking treatment of the invoices covering these external fees, taxes and honoraries.
In accordance with the internal regulation of the National Society of Industrial Property Attorneys (CNCPI), the Provider reminds that he is forbidden to take over or to offer to take over the financial risks or the fees of an operation or of an intervention for others as well as to fix his remuneration exclusively according to the intended result of such an operation or intervention.
The prices mentioned in every Service Proposal shall be deemed exclusive of VAT.
A value added tax (VAT), at the current rate prevailing on the date of the operative event for the VAT, will be applied in addition, when the latter is applicable pursuant to French and European laws.
The Services give rise to invoices addressed to the Client. Assuming that the taxes of the intellectual property offices and the honoraries of the providers are not directly invoiced thereby, on request of the client, the invoices of the Provider will show up distinctively the various honoraries and taxes. Moreover, they indicate the amounts previously received as advance or payment.
Article 8 – PAYMENT TERMS
The invoices shall be paid net, without discount, within thirty (30) days end of the month following the date of invoicing. In any case, any claim of the Client regarding an invoice cannot be considered as a ground enabling him to unilaterally suspend the payments or operate deductions or compensations.
The Provider retains the right to require:
- The payment in cash before the completion of the mission if justified by the financial situation of the Client or if prior payment incidents have occurred with the Client,
- guarantees for the purposes of ensuring the proper payment.
Failure to make a payment by its due date of a single payment term will result, ipso jure, and without prior formal notice, in:
- the other payment terms or the other invoices not yet due being immediately payable,
- the suspension of the mission or, at the choice of the Provider, the anticipated payment of every order under execution.
If payment is made after the due date, late payment penalties will be calculated from the due date until the date of actual payment, based on the VAT inclusive amount of the price of the services appearing on the invoice, at a rate of 15%. These will be payable on simple request of the Provider, without the necessity of any reminder. Moreover, a lump-sum amount of 40 € will be invoiced in addition as a compensation for recovery fees, in accordance with Articles L441-6 and D 441-5 of the Commercial Code.
Fees inherent with every procedure engaged for the purpose of contentious recovery of the due amounts will be charged on the Client.
Article 9 – OBLIGATIONS OF THE PARTIES
9.1. Obligations of the Client
The Client makes a commitment to communicate to the Provider true and fair information and to address to him all the elements necessary for the provision of appropriate Services. In particular, he makes a commitment to inform him on his activities and projects, on the state of the art and on the state of the competition. He makes a commitment to inform the Provider on every change concerning the provided data and would be solely liable for the possible damages that might result from erroneous or incomplete information.
9.2. Obligations of the Provider
For his own reasons, and in particular for ethical reasons, and especially if this proves impossible, the Provider has the right to refuse a mandate, provided that he alerts the Client within a reasonable timeframe and that he provides him with all information needed for an emergency action. If a mandate is accepted, the Provider shall observe the prudence and diligence rules essential for safeguarding the interests that are conferred thereon by the Client.
In particular, the provider is required to:
- Comply with the object of the mandate conferred on him,
- Keep the Client informed on the progress of the Services,
- Seeking instructions from the Client whenever a decision has to be taken in a situation likely to result in a loss of rights,
- Refraining from advising, assisting, representing Clients having conflicting interests, in the same case, except when requested to rule as amiable compositor,
- Observing professional secrecy in all circumstances.
Article 10 – SUBCONTRACTING
In the case where a subcontractor intervenes, the latter will then intervene under the sole liability of the Provider and will makes a commitment to keep private all information of which he would have been aware as a result of the Services.
Article 11 – NOTIFICATIONS
The parties transmit to each other the information provided for in the context of the Contract according to the method of their choice: by simple letter, by fax, by electronic mail, and even orally. Where appropriate, this information may be subject to confirmation by simple letter or by registered letter.
Article 12 – INDUSTRIAL PROPERTY AND COPYRIGHTS – STUDIES AND DOCUMENTS
Quotations, proposals and, in a general manner, all work documents established and submitted or sent by the Provider to the Client, for the purpose of the provision of the services, shall always remain his sole property and are covered by professional secrecy.
Article 13 – PRIVACY / PROFESSIONAL SECRECY
Throughout the entire duration of the contract and on expiry of the latter, the Provider makes a commitment to keep private all the documents, information pertaining to the conduct of the mission and not to release them, as well as to limit the diffusion to the only persons having to take knowledge of them for the execution of the mission.
In this respect, the Provider makes a commitment to consider as private all the documents and information confided by his Clients and not to communicate their content to any third-party other than the other attorneys to whom it might be assigned the completion of a portion of the Services pursuant Article 10 of the present General Terms.
In accordance with Article L.422-11 of the Intellectual Property Code (CPI) and with Article 12.3 of the internal regulation CNCPI, the Provider is bound by the oath of professional secrecy.
This secrecy extends to the consultations addressed or intended to the Client, the information and documents exchanged with the Client, a peer or a lawyer, interview memos and, more generally, every element of every file opened in the context of a Service.
For all practical purposes, it should nonetheless be recalled that the Provider does not commit a disclosure in infringement of professional secrecy in the cases provided for by the law, and in particular those set out in Article 226-14 of the Penal Code, and for the strict requirements of his own defense.
Article 14 – PROTECTION OF PERSONAL DATA
The execution of the Services may involve the treatment of personal data by the parties in particular for the purposes of the management of their commercial relationship, the provision of the Services and as a result of the navigation of the Client on the website of the Provider.
These treatments of personal data are subjected to the regulation applicable in personal data protection, in particular the law 78-17 of January 6th, 1978 on information technology, files and liberties (Information Technology and Liberties Law) and with the European Regulation 2016/679 of April 27th, 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (GDPR),
The Contracting parties declare being aware of their rights and obligations pursuant to the regulation applicable in personal data protection and make a commitment to process the personal data in the context of the Contract in compliance with this regulation.
In particular, the Client and the Provider make a commitment to process the personal data in the context of the Contract in a loyal, licit and transparent manner in all circumstances.
The Contracting parties declare that they have respected, and commit to respect throughout the duration of the Contract, all their obligations arising from the regulation applicable in personal data, and in particular the obligation of obtaining before the competent authorities every authorization and/or collecting before the concerned persons every consent that would be necessary for the implementation of the treatments of personal data.
It is made clear that (i) the Provider and the Client intervene as independent treatment officials for the treatments of personal data that they respectively implement for the purposes of the management of their commercial relationship, and that (ii) the Provider is considered as treatment official with regards to the treatments of the personal data of the Client for the purposes of the provision of the Services and relating to the navigation of the Client on the website of the Provider.
The Client can also contact the Data protection Officer of the Provider, by writing:
- By postal mail, to Cabinet GERMAIN MAUREAU 12, rue Boileau 69006 LYON, and/or
- By email, à firstname.lastname@example.org.
Article 15 – APPLICABLE LAW – LANGUAGE OF THE CONTRACT- COMPETENT COURT
The present General Terms of Services and the resulting Services are governed by the French law and are subject to the rules of the profession of industrial property attorney.
They are drafted in French. Should they be translated into one or more other languages, only the French text would prevail in the event of litigation.
In the event of litigation, the commercial jurisdiction of the head office of the Provider shall be the exclusive competent court, even in case of interlocutory appeal or plurality of defendants.