Terms and Conditions of Sale and Services

The Company TOOVALU (herein after referred to as « the Service Provider ») is specialised in performance in the domain of CSR (Corporate Social Responsibility) for Extra-Financial and Climate Strategy.

They have designed and developed a software solution, both standard and customisable, available online (in SaaS mode), which helps companies to streamline the management of their extra-financial data and draw-up Green House Gases (GHG) accounting statements by storing the accounting history and the data that make up the accounting statements (herein after referred to as « the Solution »).

The Company sells services relating to support for structuring and implementation of the CSR strategy of organisation, structuring and management of their Extra-Financial Strategy, defining methodology for calculation of greenhouse gas assignments and configuring its software solution.

1.1 - Definitions: Whenever they are used in the body of these General terms and conditions, the following expressions will have the following definition:

« Client » refers to the entity that purchases the offer from the company TOOVALU;

« Quotation » refers to the technical and commercial proposal specifying the specific conditions of the offer of the Service Provider; it also specifies the scope of the Assignment, the beneficiaries, the Deliverables, any training provided, the duration, the price and the payment schedule. Each proposal remains valid for a duration of three months.

« Order » refers to the purchase of an offer from the Service Provider;

« General Terms and Conditions » refers to this document, which governs the business relationship between the Service Provider and the Client;

« Assignments » refers to the services that TOOVALU undertakes to provide the Client as described in the Quotation and its annexes if present (specifications…);

« Service » refers to all the tasks and actions that the Service Provider should perform to fulfil the Assignments;

« Deliverable » refers to the documents that TOOVALU should hand over to the Client for validation during the Assignments. The Deliverables, which are expected, are listed in the Quotation and its annexes if present;

 « Party(ies) » refers individually or collectively to the Service Provider and the Client.

1.2 – Scope of application

This General Terms and Conditions is applicable to all the sales made by TOOVALU with professional buyers.

They supersede any clause that might appear on the Client documents especially on his General Terms and Conditions of purchase.

The terms and conditions specific to each offer from TOOVALU are described in the Quotation and its annexes, namely the description of the Assignments and the Deliverables, the price, the payment methods, the start date of the Assignments and the lead time, the duration of validity of the offer…

The contract documents consist of the Quotation and its annexes, if any, and the General Terms and Conditions. In case of contradiction between them, the contractual documents supersede in the order indicated above. These contract documents make up the entirety of the contract (herein after referred to as « the Contract »).

All Orders will be subject to acceptance without reservation and complete agreement of the Client with the General Terms and Conditions.

He can be exempted from the General Terms and Conditions and the terms of the Quotation, only under written consent from the Service Provider.

The General Terms and Conditions are communicated to any entity that asks for it, to help them place the order.

Any other document other than the General Terms and Conditions or the Quotation, especially any prospectus, advertisement, Internet site, released by the Service Provider is only indicative and is for information purposes only and not contractual.

2.1 – The Service Provider draws up a Quotation. Acceptance of the Quotation by the Client before the expiry of its validity period is considered as an Order.

At all events, the contents of the Quotation are protected under intellectual property rights, They are meant strictly for personal and private use of the individual or the company that requests for it and cannot be reproduced or communicated to third parties or used partly or fully for commercial or non commercial purposes, without prior written permission from the Service Provider. Any reproduction or more generally any unauthorised use of the abovementioned contents will be tantamount to piracy.

In principle, accepting a Quotation should be done in writing, in hardcopy or electronically to allow for identification of its sender. The Service Provider can under no circumstance be held responsible for any delay in the execution of the Assignments due to delayed receipt of an acceptance in proper format from the Client.

An Order involves acknowledgement by the Client that he has obtained all the necessary information about the Assignments from the Service Provider and that it meets his requirements.

2.2 – Orders are irrevocable, except for modification or cancellation accepted in writing by the Service Provider.

In case of cancellation, which is accepted by the Service Provider, a compensation of 30% of the cost of the Assignments will be payable to the Service Provider for losses, notwithstanding any damages and interest due to the losses incurred by the Service Provider.

3.1 - Cooperation

In order to be able to complete the Assignments successfully the Service Provider should receive full and loyal cooperation  from the Client who undertakes to communicate information exhaustively and correctly  concerning his activities, his requirements and in general, all information necessary as per proper definition of the Assignments and for proper completion of the Services. In this regard, the Client undertakes to inform the Service Provider about any change regarding the details provided and more generally any event that might impact the Assignments.

In all cases, the Client will be held solely responsible for damages that might result due to wrong or incomplete information, or delay or absence of response to requests for instruction or details made by the Service Provider.

<b>3.2 – </b>Lead time – Sub-contracting

The Parties, under mutual agreement, decide on a scheduling forecast that is attached to the Order.

Except when a binding deadline is expressly agreed to with the Client, the Service Provider gives his best to follow this schedule, under condition that the Client fulfils his commitments especially with regards to payment of the cost as per the payment schedule agreed to.

The Service Provider cannot be held responsible for changes in the scheduling made because of the Client, especially due to delay in scheduling meetings or collecting the necessary data.

The Service Provider is allowed to outsource entirely or a part of the Services.

3.3 – Modification to the Assignments

In the case where the Assignments should be modified as requested by the Client, the Service Provider will examine the consequences of such a request, especially on the lead time and the costs. He will then send an amendment proposal for the Contract. The new terms and conditions will come into force when the amendment has been signed by both the parties, But, unless explicitly indicated, all the Services performed until the request for modification of Assignments will be payable by the Client.

In case of cancellation of the Contract whatever be the cause, all the Services executed until the date of cancellation will be payable by the client.

3.4 - Acceptance

In absence of any reserve or claims expressly made by the Client within 5 working days after receipt of a Deliverable, it will be deemed as being compliant with the Order.

Any reserve or claim should be made in writing, with all the necessary proofs.

No claim will be validly accepted in case of non-compliance by the Client with these formalities and time frames.

The Service Provider will correct the faulty deliverable as soon as possible and bear the expenses.

If a reserve or claim is in practice a request for service not mentioned in the Quotation, the Service Provider will draw up an amendment to the Quotation that will be submitted to the Client.

3.5 – Software licences

Licences for the software Solution of TOOVALU can be included as part of the Assignments. In this case, the terms and conditions for obtaining the licence are specified in the contract document « Special terms and conditions for obtaining licence). It can be recalled that validation of the Quotation by the Client will be construed as acceptance of the Quotation.

4.1- Cost: The cost of the Assignments is determined by the Service Provider on the basis of his rates applicable on the day when the Quotation was drawn up.

The cost is the net cost, exclusive of taxes and not including any transport and living expenses. VAT applicable is the VAT in force on the day of the chargeable event of tax.

For France, travel and living expenses are billed on actuals, with a maximum of 250€ per person per diem. For foreign countries, they are billed on actual with a maximum amount predetermined in consultation with the Client.  

Translation cost: If the working language is French, the Deliverables will be drafted in French, except when expressly indicated otherwise. In case when the Client requests for translation of document(s), the cost incurred for translation will be exclusively borne by the Client.

The Service Provider reserves the right to change his tariffs at any time, without notice, and without incurring any liability for this. However, the cost mentioned in the Quotation is fixed for the entire duration of validity of the offer.

4.2 – Modalities of payment

4.2.1. An advance payment might be payable when the order is place especially in case of training, and then there will be intermediary billing for the Assignments at the time of delivery of each of the Deliverables agreed to.

The invoices corresponding to the Assignments are invoiced as per the mode of billing indicated in the Quotation. If required, they indicate the amounts received previously as advance payment.

In accordance with Article 3.2 above, the Service Provider reserves the right to invoice the Customer for any Mission whose schedule has been modified by the Customer. An assignment that has not been launched will thus be invoiced in full no later than 3 months (three months) after the initially scheduled launch date.

The invoices from the Service Provider are payable at 30 days from the receipt of the invoice, through bank transfer or through bank check.

4.2.2. No discount will be offered for cash payment or payment made before the due date mentioned in the invoice sent by the Service Provider.

Any complaint about items on the invoice should be made to the Service Provider within a maximum period of 15 calendar days from the date of reception of the invoice. After this deadline, no complaint will be entertained.

The payment will be considered as valid payment as per the General Terms and Conditions only after the payment has been effectively encashed and not when they are remitted.

4.3 – In case of delay in payment, late payment charges calculated at the rate of three times the legal interest rate, on the gross amount due, will be automatically and with full rights be payable to the Service Provider, without any formality or prior notice and the entire sum due from the Client will be immediately payable, not withstanding any other action that the Service Provider might be liable to take, in this regard, against the Client.

If the terms and conditions of payment mentioned above are not respected, the Service Provider also reserves the right to halt the execution of the Assignments and/or reduce or cancel any discounts that might have been given to the Client.

Expenses and fees inherent to all processes and procedures carried out to collect the amounts due are to be borne by the Client who agrees to this.

5.1 – As a general rule, the Client agrees to collaborate actively and regularly during the entire duration of the Contract especially in ensuring that the Service Provider gets acquainted with the specific technical and functional contexts which are useful for performing the Assignments and (ii) in providing classified, documented information considered to be necessary by the Service Provider. The Client is solely responsible for putting the Deliverables to use and faces all the consequences. In this regards, he recognises, that he has all the competencies required for the proper utilisation of the Deliverables.

5.2 – For the purpose of fulfilment of their respective obligations originating from the Contract, each of the Parties will nominate a manager, from among their personnel, who has the profile, competence, qualities and characteristics required to perform his duties and be the chosen representative for the other Party. The personnel of each of the Parties will remain, under all circumstances, under his hierarchical and disciplinary authority and each of the Parties in their capacity as employers, ensure administrative, accounting and corporate management of their employees and retain the responsibility of providing the proper conditions for work especially in terms of planning the working hours of their resources and compliance with the legal working hours.

5. 3- The Service Provider undertakes to take all necessary steps and bring all his know how to complete the Assignments and the related Services. Under express agreement, he as such, has the obligation of means.

The Service Provider undertakes to take out an insurance policy that guarantees his professional civil liability for his share of obligations as per the Contract.

He undertakes to maintain this policy for the entire duration of the Contract by providing proof at the request of the Client, in the form of attestation from his insurers, listing the guarantees purchased, their amount and their validity period

If the Service Provider does not fulfil any of its obligations (by virtue of the contract or legal provisions) the parties expressly agree:

-         That the responsibility of the Service Provider will be limited to the direct material losses and all non-pecuniary losses are excluded from compensation, including and not limited to: loss in profit, turnover, margins, loss of order, clients, operations, loss of data, files, proofs or impact on brand image or any action from third parties;

-         That the Client should file a case with the competent court within one year from the date of non-execution under penalty of foreclosure;

-         And, in all cases, that the losses that will result from this non-execution for the Client cannot be compensation beyond a maximum amount (compensation ceiling) against the amount received by the Service Provider for the Assignments to the extent of the amounts covered by the civil liability insurance policy purchased by TOOVALU. 

The stipulations of the Contract share the risk between the Service Provider and the Client, and the cost agreed reflecting this sharing of risk and limitation of the liability that results from it.

The provisions of this article will continue to be applicable even in case of cancellation or termination of the Contract as mandated by the final decision of the court.

8.1 – Proprietary information

Proprietary information refers to all the information and technical and/or scientific knowledge, especially the know-how, manufacturing and trade secrets, data, database, software, files, maps, diagrams, drawings, formulas and/or any other type of information, under any form, patentable or not, and/or patented or not, and all the intellectual property rights that result from them, required for fulfilment of the Assignments, belonging to the Service Provider or held by him before the Contract has been signed or obtained by him independent of the performance of the Services for which he holds the rights to use.

The Contract does not carry any transfer or licence rights of the Service Provider on his Proprietary information, which he is free to use in whatever manner they choose, for themselves or for any other third-party of their choice

8.2 – Foreground

Foreground, refers to all the information and technical and/or scientific knowledge, especially the know-how, manufacturing and trade secrets, data, database, software, files, maps, diagrams, drawings, formulas and/or any other type of information, under any form, patentable or not, and/or patented or not, and all the intellectual property rights that result from them, obtained by the Service Provider at the time of execution of the Assignments.

All intellectual property rights relating to the Foreground are the property of the Service Provider. Any ownership of this Foreground will be filed at their own expense, under their sole name and at their sole initiative.

On condition of complete payment of the cost, the Service Provider accords the Client a non-exclusive use licence for intellectual property rights relating to the Deliverables integrating the calculation and sampling methods, for their personal requirements and if necessary, described in the Order. Any other use should be done under prior written agreement from the Service Provider. This licence is granted for a legal protection duration of the above-mentioned intellectual property rights.

The following use rights are granted:

-         The right to change or cause to be changed, the entire or a part of the Deliverables, viz., the right to modify, correct, customise, make versions (in French, foreign or any software language), the right to transform or cause to transform the Deliverables, to transcribe, repair or cause to repair the entire or a part in any form, whether written or digital, integrate or cause to integrate the entire or a part of the Deliverables into another existing or future work, under any format and media,

-         The right to reproduce or cause to reproduce the Deliverables or its adaptation as defined in this document, permanently or temporarily, viz., rights to copy, print, record load, display, run, send, store in any media (hardcopy, magnetic, digital, computerised, electronic, CD-ROM, CD-I, Internet site and any other known or still unknown media), in any format,

-                        The right to represent or cause to represent, viz., the right to publish, distribute re(produce), exploit, show reproductions of the Deliverables, or any adaptation as defined in this document without royalty and through any means (television broadcast, satellite transmission, cable telecast, digital transmission, digital transmission online or on media or any other means known or unknown till date).

The Contract does not carry any transfer or licence rights of the Service Provider on his Foreground information, which he is free to use in whatever manner they choose, for themselves or for any other third-party of their choice

But the Client is not allowed to release the Deliverables to third-party especially to the competitors of the Service Provider.

8.3 – Deliverables

Notwithstanding clauses under articles 8.1 and 8.2 above, the Deliverables are the property of the Client after complete payment of the cost.

8.4 – In case of training, especially for using the software Solution

The training documents are and remain the property of the Service Provider. But TOOVALU grants the Client the right to use these documents under conditions defined in article 8.2 above. They can be used in PDF format to send the information internally. They cannot be reused by the Client for commercial purposes, nor can they divulge them to third-party even free of cost.

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The extracts of the training distributed internally by the Client should always mention the source, which is TOOVALU.

8.5 - The Client refrains from any action that might directly or indirectly affect the rights especially intellectual property rights of the Service Provider.

Trademarks of the Service Provider, such as his brands, company name, commercial name, domain name are protected by law.

8.6 - The Client permits the Service Provider to use his name, his company name and his logo to show case their business relationship in their presentation of their activities and their business documents and internet sites.

Each Party is prevented from communicating, directly or indirectly to any one, about the entire or a part of information of any kind, commercial, industrial, technical, financial, nominal etc., which has been communicated to him by the other Party or which has come to their knowledge during the execution of the Order or the Contract, provided that this information have not come into the public domain through no fault of the receiving party.

The Proprietary information and Foreground are confidential information as per this article.

Each Party acknowledges that any divulgation will harm the interests of the other Party and will be held liable.

As per article 1120 of the Civil code, each Party guarantees the compliance with the above mentioned undertaking of confidentiality by their duly authorised employees, representatives and sub-contractors.

Other than the cases which the French jurisprudence considers as force majeure, the obligations of the Service Provider will be automatically suspended if events not within his control prevent him from normal execution of the Contact, such as :

-  climatic events such as frost, hail, snow, heatwave, tempest, bad weather,

-  earthquakes ;

-  fire and similar events ;

-  any electrical incident,

-  flood ;

-  traffic obstruction for whatever reason ;

-  total or partial strike, which might be internal or external to the Client’s or the Service Provider’s company ;

-   lock-out in the Client’s or the Service Provider’s company,

-  interruption in telecommunications ;

-  failure in IT networks ;

-  …

The Party that is affected by the incident will immediately inform the other Party. The suspension of obligations of the Service Provider will in no way be cause for liability for non-execution of the obligation in question, nor entitle the Client for payment of damages and interest or late fees.

But, as soon as the reason for suspension of their obligations is no longer present, the parties put in their best efforts to restart the normal execution of their contractual obligations as soon as possible.

Except otherwise agreed to, the Parties desist from hiring or cause to work, directly or through another person or an intermediary company, any employee of the other Party who has participated in the execution of the Contract, even if the initial solicitation has been made by the employee in question. This obligation is valid for the entire duration of the Contract and during the 12 months after his end of employment for whatever reason.

In the case where one of the Parties does not comply with this obligation, it undertakes to pay the other Party a compensation equal to 12 times the monthly salary amount of the employee in question prior to his leaving.

In case of non-compliance of one of these contractual obligation by one or the other Party especially in case of default in payment of the entire or part of the cost as per modalities agreed to, the other Party can terminate the Contract.

The termination will automatically come into action one month after sending the notice that has been partly or fully unsuccessful.

The Client irrevocably consents that the Service Provider has the right to transfer or sell the entire or part of his rights and obligations to any third party of his choice.

If the Service Provider refrains from invoking any of the clauses herein at any given time, it cannot be construed as relinquishing the right to invoke it later.

The Client acts on his own behalf and in his capacity as an independent entrepreneur. He neither has the power nor the authority to hire the Service Provider. None of the clauses of the Contract can be interpreted as creating, between the Client and the Service Provider, an agency, a subsidiary, a relationship of agent or an employee to employer.

The Contract comes under the French law.

For any disagreements or differences in interpretation relating to execution or termination of the Contract, except in case of emergency, manifestly illegal problem or imminent loss, the Parties agree to appoint a mediator. If at the end of a duration of 30 days, the parties are unable to come to an agreement on choosing him, the Judge of the Commercial Court of Nantes (44) can appoint a Mediator by passing an interim judgement on the request of the first party to make such a request.

This mediator will meet with the Parties, will make all useful observations and inform the consequences of their respective positions. He should offer them within a period of 160 days, the proposal of a solution that could settle their difference at the same time safeguarding their legitimate interests. This proposal will be neither binding nor enforceable. The expenses and fees for this mediator will be split into half between the parties

If an amicable solution is not found or in case of emergency, manifestly illegal problem or imminent loss, the dispute will be sent to the relevant courts under the jurisdiction of the Trial court of Rennes the sole competent authority, including in case of introduction of third-parties or multiple defendants.