TERMS
AND CONDITIONS
Last update: 01.02.2019
The Terms and Conditions are only translated in English for more convenience and better accessibility for non-French-speaking Clients.
The French version shall be the only authoritative text in the event of a dispute.
mkng consulting, a simplified joint-stock company (French SAS unipersonnelle), incorporated under French law, registered in Lille Trade and Companies Register (Registration number / SIRET: 847 706 322 00017, APE number: 7022Z) and whose registered office is located at 14 rue du Vieux Faubourg, CS30028, 59042 Lille Cedex, France, is represented by Cédric Grossmann (the “Service Provider”).
VAT number: FR41847706322.
The Service provided can be contacted below:
14 rue du Vieux Faubourg, CS30028, 59042 Lille Cedex, France
00 33 (0)6 15 95 91 90
Article 1 – SCOPE OF APPLICATION
The following terms and conditions (the “Terms and Conditions”) are related to the following services (the “Services”) offered by the Service provider to any corporate client (the “Client”):
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Business consultancy
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Communication consultancy
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Branding consultancy
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Business development consultancy
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Risk management consultancy
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Image consultancy
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Management consultancy
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Marketing consultancy
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Sales consultancy
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Advertising consultancy
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PR consultancy
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HR consultancy
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Seminars and workshops consultancy
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Resources management consultancy
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Individual coaching
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Innovation consultancy
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Recruitment consultancy
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Business strategy consultancy
All orders are subject to the Terms and Conditions and are considered as read and accepted without restrictions, nor reservations by the Client.
The Terms and Conditions are applicable notwithstanding any provision to the contrary on any documents originating from the Client, in particular in their general purchase conditions.
The Terms and Conditions are applicable unless other text on the commercial proposal (quote) agreed between the Service Provider and the Client expressly amend them.
Article 2 – ORDERS
Every order of Services will lead to the establishment of a detailed commercial proposal (quote), valid during thirty (30) calendar days from the issue date.
The signature of the commercial proposal (quote) constitutes your acceptance. The order will then be final. The commercial proposal will then have the value of an order form.
The order form, the nature of the Services and their rules of performance will not be amended without the prior written consent of the Service Provider.
In the event of cancellation by the Client of a confirmed order, for whatever reason, and without prejudice to any damages and complementary interests:
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any advance instalment paid shall remain the property of the Service Provider and no refund will be granted.
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in the absence of an advance instalment, a sum equivalent to 25% of the order total price, excluding taxes, will be due to the Service Provider and invoiced to the Client.
Article 3 – PRICE CONDITIONS
The Services are provided at prices fixed by the Service Provider, which were in force at the time of the signature of the order form. Prices are in Euros and excluding taxes.
In case of prices not determinable a priori, prices of the Services will be terminated in the order form, depending on the nature of the Services, the skill level et level of expertise required, and the amount, qualification and experience of the staff required.
The price is final et cannot be revised during throughout the term of the performance of the Services, interested parties expressly disclaim the provisions of article 1195 of the French Civil Code.
The Service Provider shall, however, retain the right to modify their prices whenever they deem, for all Services subscribed subsequent to the date of this modification.
When the Services are executed successively, are chargeable on steady dates of maturity and are subject to a tacit renewal, any price modification will take place in the following contractual period only.
If there is no cancellation by the Client before this date, the new prices will be applicable to the new contractual period.
Any modification of the prices, following an increase of the VAT or following the creation of any new tax will be immediately and automatically applied to the prices including taxes.
The expenses incurred for the performance of the Services may be invoiced to the Clients (travel expenses, accommodation, disbursements, …) following order form agreed between the parties.
Article 4 – INVOICE AND PAYEMENT TERMS
In case of specific services:
An advance instalment equivalent to 25% of the order total price, excluding taxes, will be invoiced by the Service Provider to the Client and due on the date of signature of the order form. The balance will be due and payable at maturity, unless other instalments have been agreed on the order form.
The Services are charged to the Client and invoices are payable within eight (8) calendar days of receipt. The invoices will be sent at the end of each month throughout the term of the contract.
Only bank transfer can be used as a method of payment.
In case of early payment made by the Client, no early payment discount will be applied. By no means can the payments be suspended, nor be subject to any compensation whatsoever without prior agreement in writing between the Service Provider and the Client.
Any suspension, deduction or compensation unilaterally decided by the Client will be treated as a default in payment and will have all the consequences of such default.
It is expressly agreed that the Client is called upon to pay their invoices by the normal due date of payment of the invoices without the need of any summons and by the sole expiry of the payment term, in accordance with the provisions of article 1344 of the French Civil Code. In case of a late payment of any deadlines for payment, the Service Provider notably reserves the right, without any indemnity being due to the Client, to:
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demand immediate payment of all the sums due, no matter the date of payment initially planned;
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refuse all new order or demand full payment at the date of signature of the order form, or a guarantor for the good performance of the Services;
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cover first the non-preferential part of the debt and then outstanding senior debt by any partial payment;
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reduce, suspend or cancel the on-going Services, thirty (30) calendar days, after the formal letter sent to the Client by the Service Provider remained ineffective;
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apply, without further notice, to all due sums, from the first day of the delay and until full payment, late fees calculated at the rate referred to article L.441-6 of the French Commercial Code; and / or
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demand the payment of a fixed allowance of €40 for recovery costs, for each invoice paid late, and an allowance equivalent to 10% of the total balance due, without prejudice to compensation for the damages actually suffered.
Article 5 – TERMS OF SERVICE
The Service Provider declares that they have the skills, experience and necessary means to provide the Services, and will assume responsibility for the performance of the Services and the organisation of their staff, if need be.
The Service Provider will provide the Services in good faith and will perform all procedures required for the performance of their obligations governed by these Terms and Conditions, in accordance with the laws and regulations and third-party rights.
In particular, the Service Provider undertakes to:
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exercise utmost care in the performance of the Services;
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execute or provide adequate means, if need be, for the performance of the Services;
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respect deadlines or indicative planning stated in the order form, in absence of the immediate performance of the Services.
The Service Provider will provide the Services at the place agreed with the Client in the order form. In the event that the Service Provide will provide the Service in the Client’s premises, the Service Provider will comply, and ensure that their staff will comply, to reasonable health and safety standards, standards of confidentiality and security taking place in your premises.
The Service Provider will collaborate actively and in good faith with the Client in all areas, in, order to ensure the best performance of the Services, and will inform immediately the Client of any difficulties or dispute occurred during the performance of their mission.
The Service Provider will provide the Services in complete independence and autonomy. The Service Provider, their directors, nor their staff members, will be able to act as agents, subcontractors or employees of the Client and will not have the power nor the authority to take decisions, engagements, nor enter into a contract on behalf of the Client, in any way, unless prior and special written agreement from the Client.
The Service Provider will be liable for taxes, social security contributions, or penalties inherent in their activity as an independent professional, will fulfil all their legal and regulatory obligations concerning employment and remuneration of staff member should be made available to perform the Services, if need be.
The Service Provide commit to provide the Client, at the date of signature of the order form and every six (6) months a K-bis / a situation notice and a certificate of social declaration and payment of social security contributions from the French Social Security (URSSAF).
The Service Provider will inform, if need be, the Client with a written note of any mission or action that might put them in a position of apparent conflict of interest, in order for the parties to agree on decisions to make and measures to tale in order to preserve the interests of the Client.
Article 6 – CLIENT OBLIGATIONS
The Client will collaborate actively and in good faith with the Service Provider in all areas, in, order to ensure the best performance of the Services.
They communicate complete information and documents, precise, accurate and sincere and take decisions reasonably required before the deadlines required for the performance of the Services. The Service Provider will be authorised to use all the elements provided by the Clients for the performance of the Services or obtained from public sources generally considered as reliable, and to assume, without engaging their responsibility, that these elements are exact, precise, sincere, complete and are free of misstatements or lacks that may alter their scope.
The Client will designate an available person with the authority for decision-making, which will be the main contact person for the Service Provider in their management of their relationships to perform their Services.
The Client cannot amend, during the performance of the Services, their nature or their procedures for supplying them, unless prior written consent from the Service Provider.
They will inform immediately the Service Provider of any difficulties, reservations or dispute occurred during the performance of their mission, in order to allow an amicable resolution if need be.
The Client pays the price of the Services following payments terms as described in the Terms and Conditions.
Article 7 – CLAIMS
In case of non-fulfilment or faulty performance of the Services, the Client will inform the Service Provider and formulate their grievances, reservations and the relevant supporting documents within thirty (30) calendar days following the date they became aware of this situation, in order to allow the parties to make every effort to allow an amicable resolution within thirty (30) calendar days following the first notification from the Client.
Failing to find an amicable resolution in the conditions aforementioned and in case of serious non-fulfilment, the Client will be able to terminate the Terms and Conditions under the terms in article 13 and obtain, if need be, damages and interests from the Service Provider in order to repair the damage suffered, the Client renouncing in advance to request a forced execution in nature of the Services by the Service Provider or a third-party, or a proportional reduction of the price, by express dispensation from the clauses of articles 1221, 1222 and 1223 of the French Civil Code.
Article 8 – SERVICE PROVIDER’S RESPONSIBILITY
The Service Provider are bound by an obligation of means in respect of the performance of the Services.
The Service Provider may not be held liable for:
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any failure to any obligation incurred as a result of an unpredictable event by reason of force majeure as defined in article 1218 of the French Civil Code, including but not limited to, unforeseen event such as strikes, sick leave, social unrest, plant closures, floods, fires, production or transportation failure, break in supply, wars, riots, insurgencies and more broadly all circumstance of event preventing the Service Provider to properly perform their obligations;
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in the case of the information, data, instructions, directives, materials or supports provided by the Client are incorrect, incomplete, and more broadly in the case of the non-fulfilment or the faulty performance of the Services result in whole or in part of the behaviour, a lack or a void from the Client;
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in the case of the use of the Services for an object or a purpose different from the ones the Service Provider acted for, in the case of the incorrect implementation of the recommendations from the Service Provider or the lack of awareness of the reservations expressed by the Service Provided.
In any case, the Service Provider shall not be liable for any damages or indirect or immaterial prejudices such as financial damage, loss of opportunity, loss of profit, contract loss, loss of orders, loss of client, operating loss, prejudice or any commercial disruption or damage to their image, which could result from the faulty performance or the non-fulfilment of the Services.
The liability of the Service Provide cannot exceed the total amount excluding taxes, paid by the Client for the Services within the last twelve (12) months.
In accordance with article 2254 from the French Civil Code, any legal action from a Client against the Service Provider is affected by the limitation period of one (1) year following the date the concerned Client has been made aware or presumably been made aware of the damaging event.
Article 9 – NON-SOLICITATION
During the time of these Terms and Conditions, increased by one (1) year after their termination for whatever reason, the Client agrees not to encourage or attempt to encourage, directly or indirectly and in any way, ant staff member, consultant, agent or representative of the Service Provider, to leave the Service Provider or to work (as an employee, agent, consultant, shareholder or any other status) for any other company.
Article 10 - CONFIDENTIALITY
During the period of the performance of the Services, each party will be entitled to know any confidential information, documents and/or data about the other party. Hence each party commits, on their behalf and on behalf of any other related third-parties, to preserve the strict confidentiality of all confidential information, documents and/or data of any nature in relation with the results, the activity or the clientele of the other party or of ant information received or obtained by a third-party in relation with the performance of the Services.
This pledge of confidentiality from all parties is valid during the time of the performance of the Services and increased by two (2) years after the termination of the contract.
Article 11 – INTELECTUAL PROPERTY
Unless prior written agreement from the Service Provider, the Service Provider remain the exclusive owner of all intellectual property rights related to the all elements provided to the Client, in relation with the performance of the Services, and in particular, but to be limited to the graphic charter, the title, the substance and the wording, the form, the plan and the structure of the information and documents, the texts, the logos, the brands, the images and the photographs, the animations and videos, the baselines, the taglines, the databases and more broadly all the elements provided.
Hence these Terms and Conditions grant no right of intellectual property, nor transfer of these rights, to the Client, who commit not to reproduce, use and/or represent, in any manner, even partially, any element on which the Service Provide own a right of intellectual property.
As an exception to the above, the Service Provided grant to the Client,
Provided they respect these Terms and Conditions, a non-exclusive and non-transferable right to access, download, print, if need be, all the elements provided by the Service Provider for the performance of the Services, for internal, personal and non-commercial use.
Article 12 – PERSONAL DATA
12.1 Nature of the personal data collected
The Service Provider commit to only collect personal data being adequate, relevant and not excessive in the relation to the purposes for which they are collected and/or further processed. No items of personal data, considered as “sensitive”, such as racial or ethnic origin, political, philosophical or religious views shall not be asked not collected from the Client.
The Client is informed by these Terms and Conditions that items of personal data, marked as compulsory on forms and collected in relation with the performance of the Services, are required for the performance of the Services. Personal information thus gathered by the Service Provide include, but are not limited to:
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Last, first and middle names
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Email address
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Phone numbers
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Date of birth
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Gender
12.2 Purpose of personal data collected
Personal data may be collected and used by the Service Provider for the performance of the Services and could be transferred to companies in charge of the management, performance and process of the payments.
Personal data collected may also be used in relation with the management of commercial relations in order to establish statistics and perform markets and customers surveys and to allow the Service Provider to improve their Services.
12.3 Retention, security and confidentiality of personal data
Personal data collected are processed and stored in order to ensure their security and are stored only for time required for the performance of the Services as described in article 12.2 of these Terms and Conditions.
After this time period, personal data will be kept solely for statistical purpose and will not rise to any use of any nature whatsoever.
Personal data can also be stored for security purpose, in order to comply with legal and regulatory obligations, the Service Provider is subject to.
The Service Provider undertake to implement security, technical and structural measures to ensure the security, integrity and confidentiality of all items of personal data, in order to prevent them from being deformed, damages or transmitted to any unauthorised parties.
Nevertheless, it shall be stated that no security measures are infallible, therefore the Service Provider cannot provide an absolute security of the Client’s personal date.
12.4 Transfer of personal data
Personal data may be transferred to countries outside the European Union (such as the United Sates), in order to be securely store and encrypted (Apple iCloud or Google Drive).
In accordance with the General Data Protection Regulation, all transfer of personal data to a country outside the European Union and/or not offering a level of protection answering standards as defined by the European Commission have been subject to transnational data streams conventions in accordance to contractual clauses set out by the European Commission.
Except where a third-party would ask the Client to accept a privacy statement or specific terms and conditions, the third-party companies which light have been provided with personal data exclusively for the performance of the Services.
The Service Provider commit not to share personal data from the Client, with third-party companies for marketing or commercial purposes, without prior consent from the Client.
Nevertheless, the Service Provider may have to communicate personal data from the Client to administrative or judiciary authorities when their disclosure is required to identify, apprehend or sue anyone likely to prejudice the Service Provider, any other client or third party. The Service Provider can also be legally obliged to disclose personal data and shall not refuse to do so.
Other personal data transfers to the United Stated are regulated by the E.U. – U.S. PRIVACY SHIELD: https://ec.europa.eu/info/law/law-topic/data-protection/data-transfers-outside-eu/eu-us-privacy-shield_en
12.5 Client’s rights concerning their personal data
In accordance with the General Data Protection Rule 2016/679 from 27th April 2016 (“GDPR”), each Client has a right to access, amend, correct or delete personal data by contacting the Service Provider at
dpo@mkngconsulting.com or at 14, rue du Vieux-Faubourg, CS30028, 59042 Lille Cedex, France, by enclosing a copy of your passport/ID card to your request.
Also, within legal limits, the Client has a right to object to the processing of their data, to limit it and to determine the post-mortem future of their personal data, to withdraw their consent at any time to the transfer of their personal data.
Article 13 – TERMS – TERMINATION
In case of a one-off sale, or under specific conditions, these Terms and Conditions are concluded for the time required for the performance of the Services, as indicated, if need be, in the specific conditions or on the order form.
In case of a sale with successive performance, these Terms and Conditions are concluded for an initial period of time of one (1) year. Except where otherwise withdrawn one (1) month before the end of this initial period of time of one (1) year, these Terms and Conditions are automatically renewed for a new period of time equivalent to the initial period of time at the prices valid on the date of the renewal.
The Service Provider has the right of early termination of these Terms and Conditions by sending a written request:
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in case of a force majeure, as described under article 8 of these Terms and Conditions;
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after having notified the other party in case of a serious breach to follow their obligations in relation with the laws and regulations, and without any response to resolve the situation within fifteen (15) days (when this breach can be resolved) following written notification indicating the nature of the breach and how to resolve it
Article 14 - NOTIFICATIONS
Each notification or written invitation required or permitted by these Terms and Conditions will be valid if handed directly and personally or by a third party with a receipt, if sent by certified and tracked mail against signature, or by email (except for the termination of these Terms and Conditions), addressed to the concerned party.
Any change to the address should be notified to the other party as described above.
Notifications handed directly and personally or by a third party will be deemed to be made on the day it was delivered to the addressee, as visible on the receipt. Notifications sent by certified and tracked mail will be deemed to be made on the day it was delivered for the first time to the addressee. Notifications by email will be deemed to be made on the day it was sent to the addressee.
Article 15 – AUTONOMY AND NO WAIVER
Should any of the provisions contained in these Terms and Conditions become unlawful, invalid in regard to a regulation or a legislation, or inapplicable for whatever reason, under a legislation, a regulation or a final court decision, it would be void and other provisions would remain in force.
Should the Service Provider not make use of any or several of the provisions in these Terms and Conditions, this is not to be interpreted as a waiver.
Article 16 – MODIFICATION
The Service Provider reserves the right to change these Terms and Conditions at any time for new orders of Services.
All order following a modification to these Terms and Conditions will be equivalent to acceptance of the new version of the Terms and Conditions by the Client.
Article 17 – RECOMMENDATIONS AND REFERENCES
The Service Provider is authorised to mention any Client by using their trading mark, acronym and logo in their marketing and communication materials, internally and externally after informing the Client.
Article 18 - DISPUTES
Disputes that that may arise in the normal course of business between the Client and the Service Provider will be resolved, when possible, in an amicably manner.
Without amicable resolution made within one (1) month from the day one party notifies the other, any disputes that the Terms and Conditions may cause, in regard to their validity, interpretation, performance, termination, consequences will be submitted to the tribunal of Lille.
Article 19 – APPLICABLE LAW & CONTRACTUAL LANGUAGE
These Terms and Conditions and the processes resulting from them are subject to French law. They are written in French. In case of translation in one or several languages, the French version shall be the only authoritative text in the event of a dispute.
The Terms and Conditions are only translated in English for more convenience and better accessibility for non-French-speaking Clients.