TERMS OF SALES
Date last updated: October 25, 2018.
The purpose of these General Terms and Conditions of Sale “T&Cs” is to stipulate the terms and conditions under which ASD France, a limited liability company with capital of €20,000, having its registered office at 310 Rue du Vallon, Immeuble l’Atlas, Les Bouillides, BP 203, 06560 Valbonne, France, registered with Grasse Trade and Companies Register under number B 429 463 342 (hereinafter referred to as the “Service Provider”) provides compulsory products and services to clients which employ posted employees in the scope of posting employees in the transport, public buildings and works, service, event organisation, property or wine production sectors. These products and services are detailed hereinbelow.
1. ACCEPTANCE AND AMENDMENT OF THE T&CS
The client must read and unconditionally and unreservedly accept the T&Cs when placing an Order, by clicking on the checkbox provided for this purpose. Clicking on the acceptance checkbox shall have the same force as the client’s handwritten signature. The client’s employee who accepts the T&Cs shall be deemed to have acted on behalf of the client.
These T&Cs shall replace all prior agreements between the parties. The T&Cs may not be assigned, transferred or sublicensed by the client.
The Service Provider reserves the right to amend the T&Cs at any time by publishing a new version on its website. The applicable T&Cs are the version in force on the order date and may be consulted at any time.
Clients are asked to carefully read the T&Cs, print them out and/or keep a copy on a durable medium, before placing an order on the website.
2. SERVICES AND PRODUCTS
The various products and/or services are displayed on the website.
Clients are required to familiarise themselves with said products and/or services before ordering them on the website. It is understood that these products and/or services are compulsory in accordance with regulations on posting employees but the client, which gained informed on the website and by its own means, shall remain free to order them, in full or in part, on the website, without ASD being held liable. The services offered and the description thereof are exclusively the services featuring on the website.
The documents available on the website are simply for information purposes. The photographs and description published on the website are not contractual.
The Service Provider is not a law firm and does not provide any legal advice. In accordance with applicable regulations and, in particular, the provisions of the Act of 31 December 1971, the Service Provider, its directors and employees do not provide any services involving legal consulting, drafting legal instruments or representing clients. To obtain legal advice, it is compulsory to contact a lawyer or any other person authorised by law to provide legal consulting services. The website and/or the services offered on the website shall not replace consulting a lawyer under any circumstances.
The information and the associated solution provided on the website were identified considering the details entered by the client. They are exclusively provided for information purposes and must not be quoted, considered or used as tax, legal or professional advice and shall not replace obtaining legal advice from a lawyer under any circumstances. Clients consequently acknowledge that they shall be exclusively liable for using the information provided and the Service Provider may not be held liable.
Where applicable, the client authorises the Service Provider to carry out the assignments required on behalf of the client for the purpose of performing the services and representing the client in dealings with the competent authorities and signing documents sent to the authorities. This authority shall end as soon as the Service Provider has carried out the assignments.
For the purpose of the proper performance of the services, the Service Provider may use subcontractors to provide all or part of the services.
The Service Provider shall be exclusively liable towards the client for the performance of the subcontracted services. In addition, unless otherwise stipulated, the Service Provider shall remain the client’s sole contact person for the subcontracted services.
Where applicable, all documents and products sold with the services shall remain the Service Provider’s property up until full payment of the price of the services.
3. ACCESS TO THE WEBSITE AND CUSTOMER ACCOUNT
The Service Provider’s website shall be available at all times, except in the case of maintenance and servicing periods, server updates and any exceptional downtime. The Service Provider shall not be liable for any event due to force majeure resulting in dysfunction of the website or server and except in the case of any downtime or amendment in the event of maintenance.
Similarly, any use which is not pre-authorised by the Service Provider of all or part of the website, in any manner whatsoever, may give rise to any appropriate action, including in particular action for infringement.
Access to the website cannot be guaranteed due to the very nature of the Internet.
In addition, access to the website or services ordered by the client may occasionally be suspended or limited to enable repairs, maintenance, addition of new functions or new services. The Service Provider shall endeavour to limit the frequency and duration of these suspensions or limitations.
In order to place an order, the client must create a client account. The client shall be exclusively responsible for protecting the password, which it has chosen. The client shall have the option to accept or refuse to grant access to the principal or project owner (in the capacity as contracting party of the client to which the employees are posted) so that it can check that the posting obligations have been duly observed by the client. In the event where the client accepts this service, the principal shall subsequently be exclusively liable for protecting the password chosen.
The Service Provider may send personalised e-mails to clients in order to inform them regarding updates to their services.
4. ORDERS, PRICES AND PAYMENT TERMS
The client must follow a series of specific steps when placing an order:
Presentation and selection of various services including acknowledgement of the different warnings implemented;
Saving the client’s personal data;
Acceptance of these General Terms and Conditions of Sale;
Checking the order details with the option to correct the order;
Final confirmation of the order;
Payment of the order;
The Service Provider’s acknowledgement of receipt sent by e-mail to the client at the address correctly entered by the client when placing its order;
The Service Provider’s transmission of the access codes to the client which are required to connect to the secure personal area.
The client is responsible for paying attention at each step of the order process and checking that the order is correct and immediately reporting any mistake which may arise after confirmation.
With the exception of a dysfunction attributable to the Service Provider, the Service Provider may not be held liable for any errors that may arise during the order process, which are attributable to the client, force majeure events or unforeseeable or unpreventable acts by a third party unconnected to the service.
The price of the services is calculated by applying the pricing in force when the order was registered and is stated in Euros exclusive of tax. The total amount owed and the breakdown of this amount are stated on the confirmation page for each order.
The client is informed that the order is valid for a single service for which payment is owed to the Service Provider.
For each new service, the client must enter into a new contract with the Service Provider and consequently pay new fees for the new services accepted.
The Service Provider reserves the right to amend the pricing shown on its website at any time and without notice. Nevertheless, only the applicable price on the date of the order shall apply to this order. No discount shall be granted in the event of early payment.
Additional services shall be invoiced in accordance with the pricing which can be consulted on the Service Provider’s website or based on a quote.
The price of the services is payable by banker’s card, credit card or bank transfer to the account stated on placing the order. In the event of payment by bank transfer, a pro forma invoice shall be generated and sent to the client at the time of the order specifying the details enabling it to make payment by bank transfer. Payment by bank transfer requires additional processing time (two to three working days). After collection of the funds, a final invoice shall be issued and sent to the client. Additional invoices
Payment must be made within the time limit stated on the invoice. Failing which, the outstanding amounts shall accrue late payment interest at the legal rate in force in the country where the Service Provider has established its registered office plus three points.
The Service Provider may also demand that the client pays a fixed debt recovery free amounting to €40 (set by Article D441-5 of the Commercial Code).
In the event of an order for services for an indefinite term, the Contract may be terminated by the parties subject to 30 (thirty) days’ notice with effect from the end of the month.
Notice of termination must be sent by recorded delivery post (signed for on delivery).
Termination of the Contract shall result in cancellation of the Service Provider’s representation of the client in dealings with the authorities.
Following termination of the Contract, the Service Provider shall keep the documents provided to it by the client during the period stipulated by applicable regulations and may act on behalf of the Service Provider in dealings with the authorities at the client’s request and in consideration for the fee set for such services.
6. CANCELLATION RIGHT
In the cases laid down by law, the client is entitled to a cancellation right during a period of 14 (fourteen) days with effect from placing the order. To exercise this cancellation right, the client must give notice of its decision to cancel to the Service Provider by means of a clear and unequivocal statement (sent by recorded delivery post or by e-mail), without it being necessary to justify its decision, or using the cancellation form which can be downloaded by clicking here.
The Service Provider must consequently refund the payments collected from the client in exchange for the product(s) and/or services ordered at the latest 14 days after the notice. The refund shall be made using the same means of payment as used by the client for the initial order, unless the client expressly accepts another means of payment.
The cancellation right shall not apply if the client expressly requests the commencement of the services on the effective date of the Contract, for services which shall be fully performed prior to the end of the cancellation period.
7. OBLIGATIONS OF THE PARTIES
The Service Provider is obliged to use its best endeavours and undertakes to apply the standard of care required in the performance of its services. The Service Provider undertakes to comply with all laws applicable to services.
The Service Provider’s departments are not operational outside of office opening hours (9:00 to 17:00), on Saturdays, Sundays and public holidays in force in the country where the service is performed.
The choice and purchase of services are carried out by the client under its sole liability.
The client undertakes to pay the fee for the service and comply with the payment terms.
For the purpose of the smooth performance of the services, the client undertakes to comply with and follow the Service Provider’s instructions.
The client undertakes to provide the Service Provider with all information and documents required by the Service Provider in the scope of the provision of services in order to comply with legal and regulatory obligations on posting employees.
The client undertakes to pass on a memorandum on personal data processing provided by ASD to the posted employees in accordance with the General Data Protection Regulation of 27 April 2016.
The client warrants the accuracy, authenticity and legality of all documents provided to the Service Provider. The client shall not provide incorrect or false information to the Service Provider. The client shall ensure that all contractual documents (in particular, T&Cs, contract, appendices, etc.) are accepted and approved by a duly authorised person.
8. PROTECTION OF THE NAME OF THE IMMAGE AND THE INTELLECTUAL PROPERTY OF THE SERVICE PROVIDER
8.1 GENERAL PROVISIONS
ASD or its group companies hold the intellectual property rights relating to the website(s), which they own or over which they hold the related rights of use.
Accessing the website shall not grant any right to the client over the intellectual property rights relating to the website, which shall remain the exclusive property of ASD or its group companies. The elements which can be accessed on the website, in particular in the form of text, photographs, images, icons, cards, sounds, videos, software, database, are also protected by intellectual and industrial property rights and other exclusive rights held by ASD or its group companies.
Unless otherwise stipulated in the T&Cs, the client is prohibited from reproducing, displaying, amending, transmitting, publishing, adapting, on any medium whatsoever, using any means whatsoever, or exploiting in any manner whatsoever, all or part of the Service Provider’s website and/or name, without the prior permission in writing of ASD or its group companies.
Reproduction or exploitation of all or part of the Service Provider’s website and/or name, trademark and image in any manner whatsoever, without the prior permission of ASD or its group companies, shall give rise to a penalty amounting to €15,000.00 (FIFTEEN THOUSAND EUROS).
8.2 RELEASE FROM LIABILITY
The Service Provider shall not be held liable under any circumstances for any fraudulent or incorrect use by the client or by any third party of its name, information, images, icons, cards, sounds, videos, software, database, contained in the Service Provider’s website or official documents.
The Service Provider may only be held liable in the event of material or financial damage demonstrated by the client and directly linked to errors committed by the Service Provider.
The Service Provider is only responsible for liaising with the competent authorities in the scope of postings carried out in France. Therefore, the Service Provider may not be held liable under any circumstances for:
• The client’s activities under criminal, civil or administrative law.
• Keeping payslips, drafting contracts, paying social security contributions and income tax.
The Service Provider shall not be held liable for:
The client’s lack of information regarding regulations on posting.
The selection of products and services by the client, who is required to read all warnings displayed on the website and above all to request information from any authorised advisor in order to know all obligations, which apply to it in the country of origin and in the employee’s host country.
• Consequences resulting from any omission, discrepancy, inaccuracy or error in the information or documents provided thereto by the client.
• In the event of late sending of the documents and information required to perform the service by the client.
• If it did not have the time required to perform the services due to the late sending of the documents and information required by the client.
• In the event where the client takes action contrary to the Service Provider’s instructions.
• Non-conforming or fraudulent use of the services by the client.
• Lateness linked to delivery of the documents by post to the client.
In any event, the Service Provider shall not be held liable under any circumstances for:
• Any immaterial and/or indirect damage, in particular with regard to loss of profit, commercial loss, loss of income, loss of clients, harm to brand image, loss of data which may, inter alia, arise as a result of using the website, or on the contrary, or being unable to use the website.
• Dysfunction, unavailability, incorrect use, incorrect configuration of the client’s computer, or use of a rarely-used browser by the client.
• Content of advertising and other links or external sources accessible by clients from the website.
• Damage linked to a force majeure event.
10. PERSONAL DATA
The client authorises its nominative information and personal data to be collected which is required for the purpose of order management. This data may be transmitted to companies, which contribute to performing the services, for management, performance, processing and payment purposes.
This information and data are also stored for security purposes, in order to comply with legal and regulatory obligations.
In accordance with the French Data Protection Act No. 78-17 of 6 January 1978, as amended by Act No. 2016-1321 of 7 October 2016, the client has a right to decide and monitor use of its personal data. This right may be exercised in accordance with the procedure described under the heading “Legal Notice” on the website.
In the event of transmission of personal data relating to the client’s posted employees, the client must issue a memorandum to said posted employees relating to the processing of their personal data in accordance with the General Data Protection Regulation of 27 April 2016.
All information or documents disclosed by the client to the Service Provider, or which the Service Provider was or became aware of in the scope of performance of the services, including but not limited to information on the client’s business lines, clients, suppliers, know-how or market opportunities, which have not entered the public domain at the time of disclosure thereof, are confidential. The Service Provider undertakes to use such confidential information exclusively in the scope of performance of the services and to refrain from disclosing such confidential information at any time and to any person, without the client’s prior permission in writing, except in the event of a legal or regulatory obligation applicable thereto.
The data and information transmitted shall be considered confidential and shall be processed with the strictest confidentiality. The client has given permission for the processing of its personal data for the exclusive purposes of performing the services and authorises the Service Provider to disclose its confidential information for the performance of the services.
12. FINAL PROVISIONS
The Service Provider shall archive all contractual documents: T&Cs, contracts, appendices, order forms and invoices on a reliable, secure and durable medium in order to create a copy thereof. The client may consult its documents at any time in its secure personal area using its access codes. Unless proven otherwise, all data and documents saved or downloaded in the Service Provider’s IT system constitute proof of all transactions concluded with the client. In the event where one of the provisions of one of the aforementioned documents is held null and void or unwritten by a Court, the remaining provisions shall remain in full force and effect and shall be interpreted in such a way that complies with the parties’ original intention. In the event where all contractual documents, including in particular the T&Cs, are translated into one or more foreign languages, only the French version shall be authoritative in the event of a dispute. Should the Service Provider fail to rely on one or more provisions of these T&Cs, such waiver shall not be construed as a permanent waiver of the right to rely on said provisions in the future.
GOVERNING LAW AND JURISDICTION
The contractual relationship is exclusively governed by the law of the country where the Service Provider has established its registered office.
In the event where an amicable solution cannot be reached, the courts with remit for the location of the Service Provider’s registered office shall have exclusive jurisdiction to hear all disputes relating to the validity, interpretation or performance of this Contract.