Preamble
ELIOPHOT is a web agency offering various services: website creation, hosting, referencing, Adwords campaign, e-reputation management, photographic reporting, etc.
ELIOPHOT offers its services as part of a package presented on the https://www.eliophot.com website .
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.
In these general terms and conditions (including in the preamble), whenever they begin with a capital letter and whether they are used in the singular or plural, the terms defined below shall have the meanings attributed to them hereinafter.
Deposit: Means the lump sum fixed in the Purchase Order and to be paid by the Customer as a deposit on signing the Purchase Order.
Anomaly: Refers to any identifiable and reproducible anomaly that significantly alters one or more functionalities of the Site specifically described in the Specifications.
Order Form: Refers to the form signed by the Customer, the purpose of which is to order the Services.
Specifications: Refers to the specifications drafted by ELIOPHOT solely on the basis of information transmitted by the Client or collected from the Client.
Client: Means the client designated in the Purchase Order.
General Terms and Conditions: Refers to these 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 Terms and Conditions: Refers to either the E-Reputation or Adwords Special Terms and Conditions.
E-Reputation or Adwords.
Customer 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 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: Refers to the legal agreement resulting from the Order Form, the General Terms and Conditions and, where applicable, the Special Terms and Conditions.
Term: Refers to the duration of the provision of the Services, as defined in the Order Form, which may not, in any event, be less than 36 months in the case of packaged offers.
ELIOPHOT: Refers to ELIOPHOT, a simplified joint stock company with capital of 688,500 euros, registered in the Aix-en-Provence trade register under 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 a.m. to 6 p.m. (French time), excluding public holidays (French calendar) and ELIOPHOT’s annual holiday 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 Order Form.
Adwords Services: Refers to the services relating to the management and optimisation of the Customer’s Adwords campaigns, as defined by the Customer in the Order Form.
E-Reputation Services: Refers to services relating to the management of the Customer’s reputation and image on the Internet, as defined in the Order Form by the Customer.
Distinctive Signs: Refers to 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: Refers to the website to be created by ELIOPHOT on behalf of the Client in accordance with the Order Form and the Specifications.
The General Terms and 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 dispatch of the Order Form.
ELIOPHOT reserves the right to modify all or part of the General Terms and Conditions or the Special Terms and Conditions at any time, the 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 consumer law and declares that it has this status, which is a determining factor in ELIOPHOT’s willingness to contract, the price of the Services having been defined in accordance with the exclusions and limitations of liability provided for in the General Terms and Conditions.
The services offered by ELIOPHOT are grouped into different packages.
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 Order Form must be signed by the Customer and sent to ELIOPHOT, together with the Deposit, by post 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 in particular 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 offers 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 as part of an additional order.
At the end of the Term, the Contract will be tacitly renewable for periods of 12 months, subject to the pricing conditions set out in the Order Form. 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 must 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 depends 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 Site so that the scope of the Services can be precisely and exhaustively defined, it being agreed that ELIOPHOT shall only be bound to carry out the work corresponding to the needs specifically expressed and detailed in the Specifications, to the exclusion of any other work which may 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 to the appearance of any difficulty encountered during the performance of the Services. In this respect, the Customer undertakes in particular to respond promptly to any requests 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 Client’s existing website, the Client undertakes 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 defined in the Order Form and, where applicable, the Specifications, during the Working Days. Unless otherwise agreed between the Parties, ELIOPHOT’s obligations with respect to the performance of the Services are obligations of means.
Consequently, 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 which have been expressed and precisely described in the Specifications; The absence of Anomalies, as the Website may present operating errors which will be corrected within the framework of the maintenance services defined in the Order Form; The ranking of the Site in the search engines; The attractiveness, profitability or audience rate of the Site; The continuity or absence of slowdown of the technical services provided by ELIOPHOT (e.g. hosting, etc.): hosting, etc.The continuity or absence of slowdown in 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 access to any part of the Services for maintenance, improvement or updating purposes, without being bound by any guarantee or indemnity and/or damages of any kind to the Customer.
The Client undertakes to communicate to ELIOPHOT all of its requirements with respect to the functions and presentation of the Website to be created.
As a determining condition, it is agreed that the Client is responsible for the expression of its needs and that ELIOPHOT shall not be held liable for any lack of advice in this respect even if ELIOPHOT has provided the Client with assistance in this respect.
ELIOPHOT will draw up a set of specifications on this basis. 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 will be submitted to the Customer for validation and signature. Any subsequent modification to these Specifications must be the subject of a quotation and a written agreement between the Parties.
The Client hereby acknowledges and accepts that the time spent by ELIOPHOT in drafting the Specifications shall be considered as the performance of the Services.
The number of round trips for correction and validation will not exceed 3 round trips.
ELIOPHOT undertakes to submit for the Client’s written approval the draft of the Site, in the form of mock-ups, before the computer developments are carried out.
The Client will have a maximum of 5 Working Days from the effective receipt of said proposal to communicate its position on the proposed project, failing which it will be deemed accepted.
Any refusals or requests for modification by the Customer may only be based on reasonable grounds or because the project is not likely to comply with the quality criteria agreed in the Specifications.
The Client accepts that if the project of the Site, despite its compliance with the Specifications, is not approved in writing by the Client after the 4th presentation thereof, ELIOPHOT may cancel the order for the Services. In such a case, the Customer will not be entitled to a refund of the sums paid or to the payment of any compensation whatsoever.
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 Order Form.
Unless otherwise expressly agreed between the Parties, the deadlines mentioned in the Order Form are indicative and take into account the inherent hazards of any IT development.
ELIOPHOT shall in no event be liable for any delay resulting from 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 purposes of the Website.
Accordingly, the Parties agree that ELIOPHOT shall not be held liable for failure to meet the deadlines agreed between them in the Purchase Order if such failure is caused by circumstances, of whatever nature, attributable to the Customer or external to ELIOPHOT.
Acceptance of the Site by the Customer shall give rise to the signing by the Customer of a “go live order”.
The signing of this voucher constitutes authorisation to put the Site online and to distribute it to the public under the domain name reserved by the Customer.
The number of return visits (A/R) for correction and validation shall not exceed 3 A/R.
In this respect, the Customer undertakes to take all necessary steps to register ELIOPHOT as the administrative, billing and technical contact in the information relating to the domain name or to communicate the elements required for the domain name transfer procedure 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 and while waiting for 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 Site has been validly completed, the Customer shall proceed with the tests it wishes 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 hosting services to the company Group DIS, whose registered office is located at 26 Rue des Arts, 59800 Lille (03 20 09 11 68).
ELIOPHOT does not grant the Customer the benefit of any obligations and warranties other than those expressed in the general terms and conditions of Group DIS, in particular those relating to the availability of the Site or the backup of data, so that ELIOPHOT’s liability may never be sought beyond that of Group DIS.
Furthermore, the Customer acknowledges and accepts that the Site may be temporarily interrupted due to :
A force majeure event; A maintenance or servicing operation; An updating operation. In any event, ELIOPHOT will keep the Customer informed of any interruption of access to the Website.
The Parties also agree that since 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 for the performance of the Services and the granting of intellectual property rights over the Site and the ELIOPHOT Content, the Customer undertakes to pay ELIOPHOT the Down Payment on the date of signature of the Order Form, and monthly, the global and fixed sum mentioned in the Order Form.
Any request to modify the Purchase Order will result in the preparation of an estimate and will give rise to a separate invoice.
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 Order Form.
Invoices are electronic invoices sent by email.
The only means of payment accepted are direct debit (form to be filled in and signed for agreement and attach an up-to-date bank account number), bank transfer and bank cheque.
Any delay in payment by the due date indicated on the invoice will automatically give rise to the application of late payment penalties and a fixed indemnity for collection costs of forty (40) euros per invoice paid late under the terms of article L.441-6 of the French Commercial Code.
Any delay in payment will 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 Terms and Conditions do not entail any transfer of intellectual property rights.
The Customer benefits, for the entire Term, from a right to use and distribute the Site and the ELIOPHOT Content, 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 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 Site’s administration modules enabling 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 purpose of performing the Services, the right to reproduce, represent and broadcast on all reception terminals, all or part of the Distinctive Signs and Client Content on the Website in its web or mobile version, or on the media concerned by the E-Reputation and Adwords Services.
The Client authorizes ELIOPHOT to mention the Client by name among its commercial references, in particular on its Website, and to reproduce and distribute all or part of the Client and ELIOPHOT Content, 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 Law No. 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 in connection with the performance 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 Client or ELIOPHOT Content for the purposes of the performance of the Services and in particular their dissemination on the Website.
As a result, the Parties agree to fully indemnify and hold harmless the other Party from and against any and all liabilities, costs (including, without limitation, attorneys’ fees and costs of litigation) and incidental expenses that may be incurred by the other Party, either as a result of the lack of ownership of all of the rights necessary for the conclusion and performance of the Services, or as a result of the infringement of the rights of a third party in connection with the use of a Distinctive Sign or Customer or ELIOPHOT Content.
In no event shall ELIOPHOT be liable for any indirect, special or consequential damages, including but not limited to loss of revenue or profit, loss of goodwill, business interruption or slowdown.
ELIOPHOT’s liability is also excluded if it is caused by :
The Customer’s failure to cooperate; The downgrading of the Site by search engines following a change in the algorithms used by search engines to rank sites; Content posted by the Customer on the Site or sent by the Customer by e-mail to third parties; The presence of viruses in ELIOPHOT’s or the Customer’s computer systems; 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 for any reason 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 an event beyond its control, a case of force majeure or an act of a third party.
In the same way, ELIOPHOT will not be held responsible for any delay or non-execution, when the cause of the delay or non-execution is due to the occurrence of a case of force majeure usually recognized by jurisprudence.
It is agreed that the following, in particular, may constitute cases of force majeure: legislative and regulatory changes, various events and news that may have repercussions on the Customer’s image, fires, storms, floods, strikes inside or outside ELIOPHOT, illness, electrical surges and shocks, breakdowns of cooling systems and computer equipment, blockages and slowdowns of electronic communications networks, and more generally any unforeseeable event outside ELIOPHOT’s control.
However, if the force majeure event lasts for more than thirty consecutive days, it will entitle either party to terminate this Agreement by operation of law eight days after sending a registered letter with acknowledgement of receipt notifying such decision.
Neither Party may assign this Contract, or any of its rights or obligations arising from it, without the express written agreement of the other Party.
Any assignment attempted by a Party in breach of this Article shall be null and void and shall constitute a material breach of this Contract.
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, following formal notice sent to the Customer by registered letter with acknowledgement of receipt.
Each of the Parties may terminate the Contract without cause at the end of the Term by giving (3) months’ notice by registered letter with acknowledgement of receipt sent to the other Party. Any request for termination by the Customer before the end of the Term will automatically result in the application of penalties, equivalent to the payment to ELIOPHOT, within a maximum period of 30 working days, after the notification requesting termination:
Invoices corresponding to the state of progress of the work; Application fees in the total amount of 150.00 euros exclusive of tax; A sum representing 20% of the total price exclusive of tax of the Services mentioned on the Order Form, or if a first mock-up of the Website has already been produced; In the event 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 report formulated after presentation of the first mock-up, the customer is liable for the sum of two thousand five hundred euros (€2,500) and will have to pay the full amount for the first year of the offer; In the event of cancellation of the order for 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. In addition, the Customer must pay the full amount for the first year of the offer in question. In all cases, ELIOPHOT retains the Deposit.
In the event of cancellation of the order after the site has gone online, the Customer will be liable for all payments due for the entire contract, i.e. 36 monthly instalments; In the event of cancellation of the order for a pack during the second or third year, the year started will be due in its entirety and the work will not be honoured.
In the event of termination of the contractual relationship, ELIOPHOT will return to the Client, if the latter so requests three months prior to the renewal deadline by registered mail with return receipt requested, the entirety of its site on CD-ROM and will return the domain name to the Client via its new service provider. ELIOPHOT shall be released from any liability with respect to 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 set out in 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 Order Form”.
2 -LoungUp “Premium”: e-concierge solution on mobile phones and tablets, may only be terminated during the subscription period under the conditions set out in article 15 – “Termination and end of contract”. In addition, the subscription will be renewed according to the same terms and conditions cited in article 3 – “Automatic renewal and modification of the Order Form”. Only the premium LoungeUp “Start” offer can be terminated at any time.
3 – Yield Management with E-Axess, Audit & Consulting in Yield Management on a weekly or daily basis. 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 cited in article 3 – “Automatic renewal and modification of the Purchase Order”.
4- Loung Up “email”: Transactional email solution, 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 in accordance with the same terms and conditions set out in article 3 – “Automatic renewal and modification of the Order Form”. Only the premium LoungeUp “Start” offer can be terminated at any time.
In accordance with the French Data Protection Act no. 78-17 of 6 January 1978 in its current version, the Customer has the right to access, rectify and object to his/her data, which he/she may exercise 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, between them, the following hierarchical value, presented in ascending order of superiority:
The Order Form; The Special Conditions; The General Conditions; Consequently, in the event of a contradiction between one and/or more provisions appearing in two documents of different priority, the document of higher hierarchical force shall prevail.
The General Terms and Conditions are governed exclusively by French law.
The customer must keep abreast of any changes made to these General Terms and Conditions by consulting the website: https: //www.eliophot.com/cgv/
any dispute relating to the validity, interpretation and performance of the general terms and conditions shall fall within the exclusive jurisdiction of the Commercial Court of the PLACE OF ELIOPHOT’S REGISTERED OFFICE, notwithstanding the plurality of parties or an appeal in warranty.BY SIGNING BELOW, I HEREBY CERTIFY THAT I HAVE FULLY KNOWN AND ACCEPT THIS CLAUSE IN ACCORDANCE WITH ARTICLE 48 OF THE CODE OF CIVIL PROCEDURE.
