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Preamble
ELIOPHOT is a web agency offering various services: creation of websites, hosting, referencing, Adwords campaign, management of e-reputation, realization of photographic report, etc.
ELIOPHOT proposes its services through packaged offers which are presented on the website https://www.eliophot.com.
The Customer has wished to use the services offered by ELIOPHOT and has signed the Order Form.
The purpose of these general terms and conditions is to define the rights and obligations of the Parties in connection with the provision by ELIOPHOT to the Customer of the Services referred to in the Order Form.
The terms defined below shall have in these general terms and conditions (including in its preamble), whenever they begin with a capital letter, whether they are used in the singular or plural, the meaning attributed to them hereinafter.
Down Payment: Means the lump sum fixed in the Purchase Order to be paid as a deposit by Customer upon execution of the Purchase Order.
Anomaly: means any identifiable and reproducible anomaly that significantly alters one or more features of the Site specifically described in the Specifications.
Order Form: Means the form signed by the Customer, the purpose of which is to order the Services.
Terms of Reference: Means the terms of reference drafted by ELIOPHOT solely on the basis of the information provided by the Customer or collected from the Customer.
Client: Means the client designated in the Purchase Order.
General Terms and Conditions: Refers to the present general terms and conditions.
Adwords Special Conditions: Refers to the special conditions applicable to Adwords Services.
E-Reputation Special Conditions: Refers to the special conditions applicable to E-Reputation Services.
Special Conditions: Refers indifferently to the Special Conditions
E-Reputation or Adwords.
Client Content : Refers to all elements (files, links, texts, images and video content) provided by the Client to ELIOPHOT with a view to their integration on the Site.
ELIOPHOT's Content : Refers to all the elements (files, links, texts, images and video contents) created by ELIOPHOT on behalf of the Customer, with a view to their integration on the Website.
Contract: Means the legal agreement resulting from the Order Form, the General Terms and Conditions and, if applicable, the Special Terms and Conditions.
Term: means the duration of the provision of the Services as defined in the Purchase Order, which shall in any event not be less than 36 months in the case of packaged offers.
ELIOPHOT: Refers to ELIOPHOT, a simplified joint stock company with a capital of 688,500 euros, registered in the Aix-en-Provence trade register under the number B 072 800 337, whose registered office is located at 355, rue George Claude - CS70383 - 13799 Aix-en-Provence Cedex 3.
Working Days: Means Monday to Friday from 9:00 a.m. to 6:00 p.m. (French time), excluding public holidays (French calendar) and ELIOPHOT's annual vacation period (2nd and 3rd week of August, last week of December, 1st week of January).
Parties: Refers to both ELIOPHOT and the Customer.
Services: Refers to the services ordered by the Customer in the Purchase Order.
Adwords Services: Refers to the services relating to the management and optimization of the Customer's Adwords campaigns, as defined in the Purchase Order by the Customer.
E-Reputation Services: Refers to services relating to the management of Customer's reputation and image on the Internet, as defined in the Purchase Order by Customer.
Distinctive Signs: Means the identification elements specific to the Customer, whether or not they are subject to intellectual property rights (in particular: trade name, brands and logos).
Website : Means the website to be created by ELIOPHOT on behalf of the Customer in accordance with the Order Form and the Terms and Conditions.
The General Conditions are applicable between ELIOPHOT and the Customer to the exclusion of any other document.
The Customer shall be deemed to have fully and unreservedly accepted the General Terms and Conditions and, where applicable, the Special Terms and Conditions if the Customer has returned to ELIOPHOT by mail the Order Form signed by the Customer or if ELIOPHOT has begun, with the Customer's consent, to perform the Services prior to the sending of the Order Form.
ELIOPHOT reserves the right to modify all or part of the General or Special Conditions at any time, such modifications taking effect for any new Order Form or its renewal subsequent to their entry into force.
The Customer is duly informed that the Services are exclusively reserved for professionals within the meaning of the consumer law and declares that he/she is a professional, this being the determining factor of ELIOPHOT's willingness to contract, the price of the Services having been defined according to the exclusions and limitations of liability provided for in the General Conditions.
The services offered by ELIOPHOT are grouped in different offers.
The Customer chooses the offer adapted to his needs and the Duration is fixed according to the choices proposed on the Order Form.
The information provided by the Customer to complete the Order Form must be accurate, complete and up-to-date.
The Purchase Order must be signed by the Customer and sent to ELIOPHOT, together with the Deposit, by mail to the following address ELIOPHOT, 355 rue George Claude - CS70383 - 13799 Aix-en-Provence cedex 3 or hand-delivered to an Eliophot employee.
ELIOPHOT reserves the right to refuse the Customer's subscription to the Services, if it considers that the Customer's activity is contrary to the standards and regulations in force or to good morals, or for any other legitimate reason. Foreign language translations included in Eliophot's offerings are for a maximum of 3,000 words per language (texts provided in French by the Customer or produced by Eliophot and validated by the Customer). For any translation service exceeding 3,000 words to be translated, the excess to be translated will only be possible within the framework of a complementary order.
At the end of the Term, the Contract will be tacitly renewable for a period of 12 months, under the pricing conditions expressed in the Purchase Order. For the packaged offers ELIO EASY, ELIO ESSENTIELLE, ELIO ESSENTIELLE LIGHT, ELIO ESSENTIELLE PERFORMANCE, ELIO ONE, ELIO ONE LIGHT, ELIO ONE PERFORMANCE, the Contract will be tacitly renewed for a period of 12 months for the amount indicated on the Purchase Order.
For any request to modify or terminate the contract, the Customer shall inform ELIOPHOT in writing three (3) months in advance by registered letter with acknowledgement of receipt.
The Parties recall that the performance of the Services requires an active and regular cooperation between the Customer and ELIOPHOT.
This cooperation is dependent on :
The precise and detailed expression by the Customer and under its responsibility, of its needs concerning the graphic presentation, the ergonomics, the editorial content, the functionalities of the Website so that the scope of the Services can be precisely and exhaustively defined, it being agreed that ELIOPHOT shall only be bound to perform the work corresponding to the needs specifically expressed and detailed in the Specifications, with the exception of any other work which would be accessory, complementary or subsequent thereto; The provision by the Client to ELIOPHOT of all documents, information, human and technical resources and existing elements necessary for the provision of the Services; An undertaking to alert each other of the appearance of any difficulty encountered during the performance of the Services. In this respect, the Customer agrees to respond promptly to any request from ELIOPHOT concerning the communication of Customer Content or the validation of projects and models proposed by ELIOPHOT. In the event that the Services consist of a redesign of the Customer's existing website, the Customer agrees to provide ELIOPHOT with remote access to its hosting and administration environment in order to retrieve the fundamental elements.
ELIOPHOT undertakes to use its best efforts to perform the Services in accordance with the terms and conditions set forth in the Purchase Order and, if applicable, the Specifications, during the Working Days. Unless otherwise agreed between the Parties, ELIOPHOT's obligations in respect of the performance of the Services are obligations of means.
Accordingly, ELIOPHOT does not guarantee:
The satisfaction of all the needs or expectations that the Customer may have in relation to the Website, but only those that have been expressed and described precisely in the Specifications; The absence of Anomalies, as the Website may present operating errors that will be corrected within the framework of the maintenance services defined in the Order Form; The ranking of the Website in search engines; The attractiveness, profitability or audience rate of the Website; The continuity or absence of slowdown of the technical services provided by ELIOPHOT (e.g. hosting, etc.); The availability of the Website; The availability of the Website's content; The availability of the Website's services: hosting, etc. The continuity or absence of slowdown of the technical services provided by ELIOPHOT (e.g. hosting, etc.), which, like any computer application, are subject to malfunctions, anomalies, errors or interruptions. ELIOPHOT reserves the right to temporarily interrupt the accessibility of any part of the Services for maintenance, improvement or updating purposes, without being bound to any guarantee or indemnity and/or damages of any kind towards the Customer.
The Customer undertakes to communicate to ELIOPHOT the completeness of its needs as to the functions and the presentation of the Website to be realized.
It is agreed that the responsibility for the expression of the Client's needs lies with the Client and that ELIOPHOT shall not be held responsible for any failure to provide advice in this respect even if ELIOPHOT has provided assistance to the Client in this respect.
ELIOPHOT shall draw up on this basis a set of specifications. The Site shall be built exclusively on the basis of the Specifications, to the exclusion of any other document or information previously exchanged between the Parties.
These specifications shall be submitted for the Customer's signature. Any subsequent modification of these Terms and Conditions shall be subject to an estimate and a written agreement between the Parties.
The Client hereby acknowledges and agrees that the time spent by ELIOPHOT in drafting the Specifications shall be considered as the performance of the Services.
The number of round trips (A/R) for correction and validation shall not exceed 3 A/R.
ELIOPHOT undertakes to submit to the Client for written approval the project of the Website, in the form of mock-ups, before the realization of the computer developments.
The Client will have a maximum of 5 working days from the effective receipt of the said proposal to transmit its position on the proposed project, failing which it will be deemed accepted.
Any refusal or request for modification by the Client may only be based on reasonable grounds or because the project does not comply with the qualitative criteria agreed in the Specifications.
The Client agrees that if the project of the Web Site, in spite of its compliance with the Specifications, is not approved in writing by the Client after the fourth presentation of the project, ELIOPHOT may cancel the order for the Services. In such a case, the Customer shall not be entitled to a refund of the sums paid or to the payment of any indemnity.
The number of round trips for correction and validation shall not exceed 3 round trips.
ELIOPHOT undertakes to use its best efforts to complete the Website within the timeframe agreed upon by the Parties in the Purchase Order.
Unless otherwise expressly agreed by the Parties, the time limits mentioned in the Purchase Order are indicative and take into account the inherent hazards of any computer development.
ELIOPHOT shall in no event be liable for any delay due to causes beyond its control, such as, but not limited to: failure of the Customer to cooperate, late, incomplete or non-compliant information or documents to be provided by the Customer, or weather conditions for photographs taken by ELIOPHOT for the purpose of the Website.
Consequently, the Parties agree that ELIOPHOT shall not be held liable for failure to comply with the deadlines agreed upon in the Purchase Order if such failure is due to circumstances of any nature whatsoever attributable to the Customer or to circumstances external to ELIOPHOT.
The acceptance of the Website by the Customer shall give rise to the signature by the Customer of a "release form".
The signature of this voucher shall constitute authorization to put the Site online and to distribute it to the public under the domain name reserved by the Customer.
The number of round trips (A/R) for correction and validation will not exceed 3 A/R.
The Customer undertakes to take all necessary steps with its service provider to register ELIOPHOT as administrative, billing and technical contact in the information relating to the domain name or to communicate the elements required for the transfer of the domain name to the registrar chosen by ELIOPHOT.
Otherwise, ELIOPHOT shall not be held responsible for the failure to put the Website online on the Customer's domain name: in this case, pending the effective transfer of the domain name, the Website shall be accessible on an ELIOPHOT URL.
The delivery of the Website is materialized by the communication to the Customer of an access to the administration modules (back-office) of the Website.
Once the delivery of the Website has been validly completed, the Customer shall proceed with the tests it wishes to perform in order to verify its compliance with the Specifications.
ELIOPHOT undertakes to provide the Customer with functional and technical assistance, as well as to correct any Anomaly identified by the Customer during this test phase.
ELIOPHOT subcontracts the hosting services to the company ITIKA, a simplified joint stock company registered in Marseille under the number B 532 137 452 and whose registered office is located at 3 place de la Rotonde, 13014 MARSEILLE.
ELIOPHOT does not grant the Customer the benefit of any other obligations and guarantees, in particular those relating to the availability of the Site or the backup of data, other than those expressed in the general terms and conditions of the company ITIKA, so that ELIOPHOT's liability may never be sought beyond that of ITIKA.
Furthermore, the Customer acknowledges and accepts that the Site may be temporarily interrupted due to
An event falling under the force majeure; A maintenance or servicing operation; An updating operation. In any case, ELIOPHOT will inform the Customer of any interruption of the access to the Website.
The Parties also agree that since the networks may have unequal transmission capacities and their own usage policies, no one can guarantee the proper functioning of the Internet network as a whole.
In consideration of the performance of the Services and the granting of intellectual property rights over the Website and the ELIOPHOT Content, the Customer undertakes to pay to ELIOPHOT the Down Payment on the date of signature of the Purchase Order, and monthly, the global and fixed sum mentioned in the Purchase Order.
Any request for modification of the Purchase Order shall result in the preparation of a quotation and shall be invoiced separately.
These sums shall be paid within 30 calendar days from the date of receipt of the invoice, plus the VAT applicable on the date of the invoice, sent by ELIOPHOT to the Customer at the address indicated on the Purchase Order.
Invoices are electronic invoices sent by email.
The only accepted means of payment are direct debit (form to be filled in and signed for agreement and attach an updated bank account number), bank transfer and bank check.
Any delay in payment by the due date indicated on the invoice shall automatically entail the application of late payment penalties and a fixed indemnity for collection costs in the amount of forty (40) euros per invoice paid late under the conditions of Article L.441-6 of the Commercial Code.
Any delay in payment shall also result in the suspension of work in progress so that no delay in delivery may be invoked by the Customer to refuse to perform its own obligations.
These General Conditions do not entail any transfer of intellectual property rights.
The Customer shall benefit, for the entire Term, from a right to use and distribute the Website and the ELIOPHOT Contents, on all reception terminals only from the URL communicated by the Customer to ELIOPHOT, or on the media concerned by the E-Reputation and Adwords Services. Any other use outside of these media is prohibited without the express prior written consent of ELIOPHOT.
The Parties agree that this right of use covers the Customer's access to the administration modules of the Website allowing the Customer to modify it within the limits of the functionalities offered to it.
The Client grants ELIOPHOT, on a non-exclusive basis, for the entire Term and for the exclusive purposes of the performance of the Services, the right to reproduce, represent and broadcast on all reception terminals, all or part of the Distinctive Signs and the Client Content on the Website in its web or mobile version, or on the media concerned by the E-Reputation and Adwords Services
The Customer authorizes ELIOPHOT to mention it by name among its commercial references, in particular on its Website, and to reproduce and distribute all or part of the Customer Content and ELIOPHOT, the Distinctive Signs or the Website on any medium of its choice for self-promotional purposes.
The Customer declares and warrants that it retains its status as a publisher within the meaning of the French law n° 2004-575 of June 21, 2004 for confidence in the digital economy for all publications published under its name on its Website, whether or not ELIOPHOT is the initiator of such publications under the execution of the Services.
The Parties warrant to each other that they hold all the rights, in particular intellectual property rights, necessary for the conclusion and performance of the General Terms and Conditions, and consequently that they have all the rights or authorizations necessary for the dissemination of the Distinctive Signs and the Customer or ELIOPHOT Content for the purposes of the performance of the Services and in particular for their dissemination on the Website.
Consequently, the Parties agree to fully indemnify and hold harmless the other Party from any and all condemnation, costs (in particular consulting and procedural costs) and accessories that may be imposed on the other Party, either due to the lack of ownership of all the rights necessary for the conclusion and performance of the Services, or due to an infringement of the rights of a third party in relation to the use of a Distinctive Sign or Customer Content or ELIOPHOT.
In no event shall ELIOPHOT be liable for any indirect, incidental or consequential damages, including, but not limited to, loss of revenue or profit, loss of business, interruption or slowdown of operations.
ELIOPHOT's liability is also excluded if it is caused by:
The failure of the Customer to cooperate; The downgrading of the Site in search engines following a change in the algorithms used by the latter to rank the sites; The content posted by the Customer on the Site or sent by the Customer by e-mail to third parties; The presence of viruses in the computer systems of ELIOPHOT or the Customer; and more generally, any circumstance attributable to the Customer, to one of its service providers other than ELIOPHOT, or to a third party. In any event, and regardless of the basis thereof, the liability that ELIOPHOT may incur on any grounds whatsoever in connection with the Services shall not, except in the case of gross negligence or fraud, exceed 50% of the total amount invoiced by ELIOPHOT to the Customer during the last 12 months preceding the event giving rise to ELIOPHOT's liability.
ELIOPHOT may suspend the performance of the Services in the event of the occurrence of an event beyond its control, a case of force majeure or an act of a third party.
Similarly, ELIOPHOT shall not be held liable for any delay or non-performance when the cause of the delay or non-performance is due to the occurrence of an event of force majeure usually recognized by case law.
It is agreed that the following may constitute force majeure: legislative and regulatory changes, events and news that may have repercussions on the Customer's image, fires, storms, floods, strikes internal or external to ELIOPHOT, illness, electrical surges and shocks, breakdowns of cooling systems and computer equipment, blockages and slowdowns of electronic communication networks, and more generally any unforeseeable event outside the control of ELIOPHOT.
However, if the case of force majeure lasts for more than thirty consecutive days, it will entitle either party to terminate the present contract by operation of law eight days after sending a registered letter with acknowledgement of receipt notifying this decision.
Neither of the Parties may assign this Contract, nor any of its rights or obligations arising hereunder, without the express written consent of the other Party.
Any assignment attempted by either Party in violation of this section shall be void and shall constitute a material breach of this Agreement.
In the event of a serious or repeated breach by the Customer of any of its obligations, in particular its payment obligations, ELIOPHOT may unilaterally terminate the Agreement without notice, without any compensation being due to the defaulting Customer, after formal notice has been sent to the Customer by registered letter with acknowledgment of receipt.
Either Party may terminate the Agreement without cause at the end of the Term by giving three (3) months' notice by registered letter with return receipt to the other Party. Any request for termination by the Customer before the expiration of the Term shall automatically entail the application of penalties, equivalent to the payment to ELIOPHOT, within a maximum period of 30 working days, after the notification of the termination request:
Invoices corresponding to the state of progress of the work; A processing fee of a total amount of 150.00 euros (excluding VAT); A sum representing 20% of the total price of the Services mentioned on the Purchase Order, or if a first mock-up of the Website has already been completed; In case of cancellation of the order during the first year of an ELIO EASY, ELIO ESSENTIELLE, ELIO ESSENTIELLE LIGHT, ELIO ESSENTIELLE PERFORMANCE, ELIO ONE, ELIO ONE LIGHT, ELIO ONE PERFORMANCE offer, with photo reportage formulated after presentation of the first mock-up, the client is liable for the sum of two thousand five hundred euros (€2,500) and will have to pay for the whole first year of the offer; In case of cancellation of the order of a pack without photo reportage during the first year, after presentation of two or even four mock-ups, the customer will owe the sum of six thousand euros (6,000 €) for an ELIO EASY, ELIO ESSENTIELLE, ELIO ESSENTIELLE LIGHT, ELIO ESSENTIELLE PERFORMANCE, ELIO ONE, ELIO ONE LIGHT, ELIO ONE PERFORMANCE offer. The Customer shall, in addition, pay the entirety of the first year of the offer concerned; in all cases, the Deposit shall be definitively acquired by ELIOPHOT.
In case of cancellation of the order after the site is online, the Customer will be liable for the entirety of the payments due on the entire contract, i.e. 36 monthly payments; In case of cancellation of the order of a pack during the second or third year, the year started is due in full and the work will not be honored.
In the event of termination of the contractual relationship, ELIOPHOT shall return to the Client, if the latter so requests three months prior to the renewal deadline by registered mail with acknowledgement of receipt, the entirety of its site on CD-ROM and shall return the domain name to the Client via its new provider. ELIOPHOT shall be released from any liability regarding the functionality of the site. Any additional service will be invoiced.
1 - Customer Alliance: e-reputation solution for the collection and dissemination of customer reviews, may only be terminated during the subscription period under the conditions of Article 15 "Termination and End of Contract". In addition, the subscription will be renewed according to the same terms and conditions mentioned in article 3 - "Automatic renewal and modification of the Purchase Order".
2 -LoungUp "Premium": e-concierge solution on mobile and tablet, can only be terminated during the subscription period under the conditions of article 15 "Termination and end of contract". Moreover, the subscription will be renewed according to the same terms mentioned in article 3 - "Automatic renewal and modification of the Order Form". Only the premium "Start" offer of LoungeUp can be terminated at any time.
3 - Yield Management with E-Axess, Audit & Consulting in Yield Management in weekly or daily frequency. This offer can only be terminated during the subscription period under the conditions of article 15 " Termination and end of contract ". In addition, the subscription will be renewed according to the same terms and conditions mentioned in Article 3 - "Automatic renewal and modification of the Purchase Order".
4- Loung Up "email": Transactional email solution, can only be terminated during the subscription period under the conditions of article 15 "Termination and end of contract". In addition, the subscription shall be renewed according to the same terms and conditions mentioned in Article 3 - "Automatic renewal and modification of the Purchase Order". Only the premium "Start" offer of LoungeUp can be terminated at any time.
In accordance with the French Data Protection Act n°78-17 of January 6, 1978 in its current version, the Customer has the right to access, rectify and object to his data at any time by writing to ELIOPHOT, personal data department, 355 rue George Claude - 13799 Aix-en-Provence cedex 3.
The Parties agree that the Contractual Documents shall have, among themselves, the following hierarchical value, presented in ascending order of superiority:
The Purchase Order; The Special Conditions; The General Conditions; Consequently, in case of contradiction between one and/or more provisions appearing in two documents of different priority, the document of higher hierarchical force shall prevail.
The General Conditions are exclusively governed by French law.
**The customer should keep informed of any changes to these terms and conditions by visiting the website **: https://www.eliophot.com/cgv/
Any dispute relating to the validity, interpretation and execution of the GENERAL CONDITIONS shall be under the exclusive jurisdiction of the Commercial Court of the PLACE OF ELIOPHOT'S HEAD OFFICE, notwithstanding the plurality of parties or appeal in warranty. By affixing my signature below, I CERTIFY THAT I HAVE FULLY KNOWN AND ACCEPTED THIS CLAUSE IN ACCORDANCE WITH ARTICLE 48 OF THE CODE OF CIVIL PROCEDURE.