General Terms and Conditions of Sale
ITFAQ Systems and Softwares Trading LLC, a company incorporated in UAE Registration number 714002 having its registered office at Code Business Tower, 13th Floor, Al Barsha 1, PO Box 341513, Dubai, United Arab Emirates, (hereinafter referred to as “ITFAQ”)
ITFAQ and the CLIENT are hereafter individually designated by a “Party” and collectively by the “Parties”.
Terms beginning with a capital letter, used in the singular or plural, shall have the meaning given below:
Products : Materials, Services or the Distribution of Software licenses provided by ITFAQ to the CLIENT.
Special Conditions: refers to all the provisions agreed between the Parties, supplementing or derogating from these General Conditions when these allow it.
Contract: refers to the whole made up of the General Terms and Conditions and the Offer accepted by the CLIENT, to the exclusion of any other document.
Data: refers to the CLIENT’s data, contents and files. The Data remains the property and responsibility of the CLIENT. They may contain Personal Data.
Personal Data: means personal data as defined by, the collection, use and processing of which is regulated.
Day(s): means, unless otherwise stipulated in the Offer and these General Terms and Conditions, the working days in France between Monday and Friday inclusive (whether or not the word appears with a capital letter).
Offer: refers to the ITFAQ commercial proposal or the ITFAQ quote, and any Special Conditions agreed upon in writing to the CLIENT.
Territory: means, unless otherwise specified in the Offer, Metropolitan France (excluding Corsica and DROM COM).
– The CLIENT wishes to engage the Products of ITFAQ as the Party to whom it entrusts delivery of these Products listed in the SOW agreement, at all locations. Acceptance of ITFAQ’s commercial proposal, or the placing of an order by the CLIENT implies the CLIENT’s acceptance of the present Terms and Conditions;
– ITFAQ is willing to assume responsibility for the Products at the sites or remotely pursuant to the terms and conditions of this Agreement;
Any contrary or additional provisions before and during the contract execution, have to be expressly agreed in writing by the Parties (e.g. in Special Terms and Conditions, specific contract or framework agreement). The CLIENT’s general terms and conditions are inapplicable.
All orders must be the subject of an order form containing at least the following information in addition to the legal notices: CLIENT’s corporate name, registered office, Trade Licence Number, order reference, billing address, delivery address, precise description of the Products, ITFAQ references, quantity, unit price, net price excluding VAT, payment method, name and position of the CLIENT’s contact person. A bank statement must be attached to any first order.
Any order will only become final after verification of the order form and sending by ITFAQ of an order confirmation. ITFAQ may express any reservations on orders received that do not conform to the Offer and to the present terms and conditions.
All orders, once received by ITFAQ, cannot be cancelled or modified without the written consent of ITFAQ. In case of unavailability of a Product, ITFAQ will be able to propose an equivalent Product in technical terms. After acceptance of the Product by the CLIENT, the Product and its price will be subject to the provisions of the Contract. ITFAQ cannot be held responsible by the CLIENT in case of unavailability of a Product.
4. PRICE & PAYMENT TERMS
The Charges for the Products will be those appearing in the Offer accepted by the CLIENT. The Charges are exclusive of value added tax (“VAT”) or other current or future tax applicable in the location where the Products are provided or ITFAQ’s domicile.
Payment terms are agreed by CLIENT and ITFAQ prior the order is placed, and defined in the Contract. If Payment terms are not witten in the contract, invoices shall automatically become payable in cash when the order is placed.
Any deterioration in the CLIENT’s credit may be justified at any time, the reduction of the CLIENT’s outstanding balance ceiling, possibly granted by ITFAQ, which may lead to a suspension of current orders; or the requirement of a cash payment at the time of placing the next orders, before shipping the Products.
No discounts will be granted for early payment.
Late payment will lead to penalties according to the calculation defined in the Contract.
In the event of disagreement on an invoice, the CLIENT undertakes to pay the undisputed part of the invoice without delay. Payment by set-off is excluded. In case of non-payment, ITFAQ will be able to declare the sale automatically cancelled, without having to fulfil any legal formality, thirty (30) days after formal notice by registered letter with acknowledgement of receipt.
5. MATERIALS DELIVERY – COMPLAINTS
The Products defined in the order forms accepted by ITFAQ, are made available to the CLIENT at the address indicated on said order forms.
If for reasons attributable to the CLIENT, ITFAQ is unable to make the delivery, the CLIENT will remain liable for the re-delivery costs.
For Products available in stock, the delivery will take place from the desired date indicated in the order form and confirmed by ITFAQ. For Products not available in stock, the delivery times communicated by ITFAQ are indicative and depend on the delivery times of suppliers, wholesalers or manufacturers.
Upon delivery of the Product, in the event of missing or damaged items, it is up to the CLIENT to express his reservations on the carrier’s document, which he must date, sign and have the carrier countersign. Failing this, the CLIENT must assume the possible consequences of this non-compliance. Without prejudice to the reservations that the CLIENT must formulate to the carrier in accordance with the legal provisions, all claims related to the Products must be notified to ITFAQ in writing, under penalty of inadmissibility, as soon as possible and at the latest within three (3) calendar days, not including public holidays, from the reception of the Products by the CLIENT. In order to be valid, all complaints must mention the references and dates of the corresponding order and delivery documents.
It is up to the CLIENT to provide any justification as to the reality of the non-conformities observed. The CLIENT must, if necessary, allow ITFAQ or the sub-contractor he will have designated, to access the CLIENT’s premises and identify the Product(s) concerned in order to proceed to the necessary verifications.
Returns of non-compliant Products will only be authorized and accepted after prior agreement from ITFAQ, which cannot be refused without a valid reason. The Products must be returned unmodified and in appropriate packaging.
The liability of ITFAQ is strictly limited to the replacement or reimbursement of any Product(s) that do not conform to the Sales Order, to the exclusion of any other damages. In the absence of reservations and/or complaints made by the CLIENT in accordance with the provisions of this article, any Product delivered shall be deemed to be compliant.
6. MATERIAL TRANSFER OF OWNERSHIP
The transfer of ownership of the Product from ITFAQ to the CLIENT, will be effective after full payment of the price, incidental expenses and taxes.
However, the transfer of risks affecting the Product takes place upon delivery. To this end, the CLIENT must take out all necessary insurance with a company known to be solvent.
Until the transfer of ownership, the CLIENT is obliged to maintain the Product in good working order, not move or dispose of the Product in any form and in any manner, and allow ITFAQ access to the Product, during working days and hours.
In the event of seizure or any other intervention by a third party on the Products sold, the CLIENT is required to oppose this and to inform the said third party of the existence of the reservation of ownership. ITFAQ must be immediately notified by the CLIENT, by registered letter with acknowledgement of receipt.
The Products sold are guaranteed against material and manufacturing defects for a period of ninety (90) days from the date of delivery.
Beyond the above-mentioned warranty period, support and assistance services can be provided by ITFAQ within the framework of our maintenance contracts.
8. CONDITIONS OF SUPPLY OF THE SOFTWARE LICENCES
Any supply of Software by ITFAQ or subscription to a SaaS solution via ITFAQ supposes the CLIENT’s unreserved acceptance of the end-user license contract of the concerned editor, as well as the general conditions of use of online services available on the editor’s website and/or communicated by ITFAQ.
The measures taken by the publisher concerning Personal Data are indicated on the documents communicated by the publisher. The terms and conditions for the supply of such Software and, where applicable, the associated support, are set out in the Contract. The License (or right of use) cannot be transferred, by any means whatsoever, to a third party without the prior written consent of the publisher concerned.
The CLIENT undertakes to comply with all the Software License and use conditions established by each of the publishers. In particular, the CLIENT may not reproduce, modify, decompile or disclose the Software without the prior written consent of the publisher concerned.
The Licenses (or rights of use) granted to the CLIENT may be terminated by operation of law by simple registered letter with acknowledgement of receipt, without notice or judicial formality, in the event of non-compliance by the CLIENT with the conditions of License and/or use of the Software or in the event of infringement or attempted infringement of the copyright relating to the Software.
Each of the Parties undertakes to respect the confidentiality of all technical or commercial information and documents originating from or relating to the execution of the present contract, hereinafter referred to as “Confidential Information”, which has been revealed to it or to which it would have had access in the course of the negotiation or execution of the Contract.
As such, each Party:
– will only use this Confidential Information for the performance of the Contract;
– will only communicate them to those of its employees to whom such information and documents are indispensable for the execution of the Contract or to third parties with the prior written consent of the other Party;
– will take all necessary measures to ensure confidentiality with regard to its staff and authorized third parties.
This obligation of confidentiality does not apply to the part of the information:
– which has become public property on the date of its communication by the transmitting Party or which would become public property after that date through no fault of the receiving Party;
– already known to the receiving Party at the time of its communication;
– transmitted to the receiving Party with a written waiver of confidentiality from the transmitting Party;
– which had to be communicated pursuant to a law, a regulation or an administrative, police or judicial decision.
Unless they have been the subject of a recommendation or consultancy service, the CLIENT has chosen the Products ordered completely independently. ITFAQ can in no case be held responsible for any unsuitability of the Products to the CLIENT’s needs, for any insufficiency of performance or for any lack of compatibility of the Hardware and/or Software between them.
This will also be the case if adjustments have been made necessary for the operation of the Hardware or if technical developments change the compatibility of the Hardware and/or Software.
ITFAQ cannot be held responsible, in any way whatsoever, for any indirect damage. Any prejudice or commercial disturbance, loss of profit, loss of profits, operating loss, drop-in activity, drop in productivity, replacement costs resulting from the unavailability of Products, loss of Data, constitutes an indirect damage, and therefore does not give the right to compensation.
Whatever the case may be, in case of proven fault, ITFAQ’s total responsibility cannot exceed the total amount of Products causing damage.
The stipulations of the present article divide the risk between ITFAQ and the CLIENT, the agreed prices reflecting this distribution of risk and the resulting limitation of liability.
By express agreement between the Parties, no legal action or claim from the CLIENT, whatever it may be, can be taken or formulated against ITFAQ more than one (1) year after the occurrence of the event.
Given its nature, this article will continue to apply even after the end of the Contract for whatever reason.
ITFAQ have the right to subcontract all or part of its obligations, hereunder to a third party, only if the arrangement does not exceed one level of subcontract.
ITFAQ remains primarily liable hereunder for all goods and services supplied by said third party.
These General Terms and Conditions are concluded for an indefinite period of time. They will end upon receipt by one of the Parties of a letter of termination, sent by the other Party by registered mail with acknowledgement of receipt. Except in the event of the CLIENT’s breach of these Terms and Conditions, the termination of these Terms and Conditions shall have no effect on orders in progress and not yet fully paid at the date of termination.
In the event of either Party’s material breach of any of the terms or conditions hereof, excluding the failure to make any undisputed payment when due, the non-defaulting Party may terminate this Agreement in whole or in part provided that the non-defaulting Party advises the defaulting Party in writing of the event of the alleged default and the defaulting Party does not remedy the alleged default within thirty (30) days after the receipt of written notice thereof.
Termination of this Agreement for any cause shall not release either Party from any liability, which at the time of termination has already accrued to the other Party or which thereafter may accrue in respect to any act or omission prior to termination or from any obligation which is expressly stated herein to survive termination.
13. FORCE MAJEURE
Neither of the Parties may be held liable for the non-performance of its obligations hereunder, if such non-performance is due to force majeure. In particular, the following are expressly considered as cases of force majeure, in addition to those retained by the jurisprudence of the French courts and tribunals: epidemics, earthquakes, fire, storms, floods, attacks, strikes, blockage of means of transport or supply for any reason whatsoever, government or legal restrictions, blockage of telecommunications, in particular the operators’ networks.
Obligations suspended due to force majeure will be executed again as soon as the effects of the cause(s) of non-execution have ended, within a period of time that will depend on the availability of the moment. In the event that an event of temporary force majeure delays the performance of the said obligations for a period of more than three (3) months, either Party may automatically terminate the Contract or the order concerned by registered letter with acknowledgement of receipt.
However, in the event that the event of force majeure definitively prevents one of the Parties from performing one of its significant obligations, each of the Parties may terminate the Contract without delay by operation of law after notification by registered letter with acknowledgement of receipt.
The CLIENT undertakes not to export, re-export or transfer, directly or indirectly, the Products and/or technical documentation outside the Territory or in violation of the conditions of the manufacturers and publishers concerned, or the applicable legal and regulatory provisions.
15. PERSONAL DATA
ITFAQ collects and processes personal data (name, first name, professional email address, professional telephone number) from different contacts at the CLIENT’s premises for:
– ensure the proper management of its relationship with the CLIENT: commercial management of the Contract, orders, deliveries, invoices, accounting, execution of the Contract, management of the CLIENT account, carrying out satisfaction surveys, management of complaints and after-sales service;
– carry out commercial prospecting and promotional operations for the CLIENT;
– manage any unpaid invoices and disputes with the CLIENT.
These Personal Data are only processed by the different ITFAQ departments concerned, in charge of the different aspects of the commercial relationship mentioned above. ITFAQ CLIENT’s contact information can be in some cases communicated to ITFAQ’s external service providers within the framework of their respective authorizations and only if it is necessary for the above-mentioned purposes (chartered accountant, auditor, debt collection company, consulting, email management service provider…).
ITFAQ will not transfer these Personal Data to a non-EU country or to a subcontractor who does not have an adequate level of protection, and will not communicate them to any person other than itself, its staff and its possible subcontractors.
This Personal Data is not kept beyond the duration strictly necessary for the management of the commercial relationship, with the exception of data allowing proof of a right or contract which may be the subject of an intermediate archiving policy for a duration not exceeding the duration necessary for the purposes for which they are kept, in accordance with the provisions in force. By way of derogation, the CLIENT’s contact data used for commercial prospecting purposes is retained for a period of three (3) years from the end of the commercial relationship.
ITFAQ reminds that the persons concerned at the CLIENT’s place have the right to access, correct, erase or portability their data, or that they can oppose to the processing of their data by ITFAQ (or ask for its limitation), or define the fate of their data processed by ITFAQ after their death. These rights can be exercised by email to contact@ITFAQ.com.
The persons concerned at the CLIENT’s premises also have the right to lodge a complaint with a supervisory authority, in particular with the CNIL (https://www.cnil.fr/fr/plaintes).
16. GENERAL PROVISIONS
No waiver by either of the Parties of any of their rights under the terms of the Contract shall constitute a waiver of such rights for the future.
The provisions of the Contract which are intended, by their nature, to remain in force after the expiry of this Contract, will remain in force after the said expiry. These stipulations include, but are not limited to, those relating to confidentiality, payment and limitation of liability.
In the event that one or more of the stipulations herein are considered null, inapplicable or unenforceable by any competent jurisdiction, the other stipulations herein shall remain valid, applicable and enforceable unless otherwise stipulated by the said jurisdiction. The Parties nevertheless agree that in such a case, they will negotiate replacement provisions in good faith.
The Parties shall elect domicile at their respective registered offices.
In the event of a dispute, the Parties will endeavor to find an amicable solution.
IN THE ABSENCE OF AN AMICABLE AGREEMENT BETWEEN THE PARTIES AND FOR ANY DISPUTE ARISING BETWEEN THEM ON THE INTERPRETATION, PERFORMANCE OR TERMINATION OF THE CONTRACT, JURISDICTION IS EXPRESSLY GRANTED TO THE COMPETENT LOCAL COURTS, NOTWITHSTANDING PLURALITY OF DEFENDANTS OR APPEAL IN WARRANTY, EVEN FOR EMERGENCY PROCEEDINGS OR PROTECTIVE PROCEEDINGS BY WAY OF REFERENCE OR APPLICATION.