Terms and conditions
GENERAL TERMS AND CONDITIONS OF SALE
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Lobstter general terms and conditions of service
LOBSTTER (hereinafter "LOBSTTER" or the "Service Provider"), a SARL with a capital of 1,000 euros, registered with the Nanterre RCS under number 852 202 241 and with its registered office at 106 avenue du Général de Gaulle – 92140 Clamart, offers the services described below and in the Quote.
GLOSSARY
In this Contract, and unless the context clearly indicates otherwise, the following capitalized terms are defined as follows, it being understood that plural words may be understood in the singular and vice versa.
Anomaly
Non-conformity and/or reproducible and repeated defect of the Website and its configuration, which prevents its normal functioning. It can be Blocking, meaning that the Anomaly makes it impossible to use all the functionalities of the Website. It can be Major; the Anomaly causes significant degradation of at least one function of the Website and which can no longer provide the expected service in accordance with its purpose, or finally Minor; the Anomaly disrupts the use of one or more functionalities of the Website without preventing access to it, nor questioning the expected service in accordance with its purpose. Minor Anomaly causes difficulties of use such as slowness or ergonomics.
Quote
Contractual document, accepted by the Client, detailing the Services chosen by the Client according to their needs, the specific terms of their execution and the financial conditions. It may take the form of a purchase order. The start of the execution of the Services by the Service Provider constitutes acceptance of the Quote.
Specifications
Contractual document drawn up by the Client with or without the help of LOBSTTER and under the exclusive responsibility of the Client. The Specifications describe as precisely as possible the Client's needs, namely the expected functionalities of the Website, the description of the general orientation of the Website, the target audience, the types of functionalities envisaged, the global architecture, the communication strategy, the target, the expected schedule, etc. The Specifications must be exhaustive.
This document may also specify the detailed technical and graphic characteristics of the Website, including the mock-up, an exhaustive map of the Website, textual and illustrated content, navigation methods, and the description of the databases.
The Specifications must be exhaustive. Any modification may lead to LOBSTTER proposing a new Quote.
Client
Legal entity whose contact details are defined in the Quote.
Contract
The Contract includes only these general conditions and the Quote. Any other document exchanged between the Parties (such as, for example, website mock-ups, graphic charter proposals, etc.) is not enforceable against them.
These documents are ranked in the following hierarchical order: Quote then General Conditions.
Only the Contract governs the relationship between the Client and LOBSTTER.
Specific Developments or API
Development of functionalities specific to the Client's request (e.g., development for interoperability between the Shopify platform and Client software).
Client Data
Refers to all data transmitted by the Client to LOBSTTER during the performance of the Services. Among this Data, some are Personal Data.
Personal Data
All personal data processed by LOBSTTER during the execution of the Contract.
Hosting
Refers to the service that provides the Client with storage space on a server, whether virtualized, cloud, shared, semi-dedicated, or dedicated. Developments made under Shopify license are hosted on servers reserved by Shopify. Hosting fees are re-invoiced to the Client. For other developments, LOBSTTER may reserve storage space at the Client's request and under its sole responsibility.
Deliverable
Refers to any creations and works such as website mock-ups, software developments, or documentation implemented by LOBSTTER during the Services. Certain Deliverables are subject to a acceptance or validation procedure by the Client, thus ensuring their conformity with the Quotes and General Conditions.
Maintenance
Refers to all preventive and/or corrective and/or evolutionary maintenance services provided by the Service Provider. The ordered Maintenance services begin the day after the end of the Warranty Period.
Party(ies)
The Client and/or LOBSTTER.
Warranty Period
Period following the public launch of the Website or Specific Developments during which LOBSTTER undertakes to perform corrective maintenance of Anomalies found after launch. Its purpose is to provide the Client with a direct solution or, if necessary, a workaround in cases of observed Anomalies that prevent the Client from normal use of a Website functionality. Unless otherwise specified in the Quote, the warranty period is 15 days from the launch of the Website or Specific Developments.
Services
All services to be performed by the Service Provider and described in the Quote or in response to the Specifications.
Malicious program
Refers to harmful computer code such as viruses, logic bombs, worms, Trojans, or any other code or instruction (resulting from a hacker, for example) infecting or affecting any program, software, data, file, database, computer or other hardware or element, damaging, harming, compromising the integrity or confidentiality, disrupting all or part of the operation, diverting or allowing to divert all or part of an information system from its intended use.
Industry standards: refers to the currently acquired scientific data, accessible to the professional according to the time, place, and economic environment of the performance of the Contract and practiced by the vast majority of professionals operating in the same field of activity as LOBSTTER.
GDPR
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
Shopify
Software solution published by the Canadian company Shopify and marketed via the website https://www.shopify.com
Website
Client's website developed by LOBSTTER. The website may be developed in whole or in part from Shopify software. It includes data of various kinds such as texts, sounds, still or animated images, videos, databases intended to be consulted by internet users.
ARTICLE 1 - Purpose
These general terms and conditions of service (hereinafter "General Conditions") are applicable to any order for Services placed by the Client with LOBSTTER, including:
- Creation and administration of Website and Specific Developments;
- Maintenance Service;
- Assistance with sending emails from the Client's database;
The General Conditions may be supplemented or amended by the Quote.
ARTICLE 2 – Client's Collaboration Obligation
2.1 - The Client acknowledges being the sole holder of the best information relating to its business and commercial activities. In this regard, the Client undertakes to comply, from the beginning of the contractual relationship and throughout the performance of the Contract, with its obligation to collaborate with LOBSTTER and its teams, and in particular, where applicable, during the drafting of the Specifications and during the various acceptance or validation stages.
2.2 - The obligation of collaboration expected from the Client means that the Client undertakes, actively, to provide LOBSTTER, within the required deadlines, with all documents, information, and data in its possession and necessary for the performance of the services covered by this agreement. It further undertakes to take into account LOBSTTER's prescriptions, particularly technical ones, and to carry out all subsequent steps.
In the event of the Client's failure to fulfill this obligation of collaboration, the execution deadlines expressly agreed upon between the Parties for LOBSTTER's responsibility cannot be properly met, which the Client expressly acknowledges. Furthermore, LOBSTTER reserves the right to suspend the performance of the Services or to terminate the Contract.
2.3 - The proper execution of the Services requires the establishment of adequate internal processes, the motivation of the Client's personnel, and the organization of Services monitoring. To facilitate this collaboration obligation, the Client designates an internal project manager. This project manager will be LOBSTTER's primary contact.
2.4 - The Client first certifies that it has verified that all of its hardware, software, and Internet access are sufficiently sized and compatible to enable it to operate the Website correctly. The Client is responsible for the maintenance, updates of its own software and hardware, and maintaining the Shopify usage license.
2.5 - The Client undertakes to inform LOBSTTER of any change of Internet service provider, hardware change, or software addition. LOBSTTER cannot be held responsible in case of non-compliance with this obligation by the Client. Any software added by the Client may limit or even exclude LOBSTTER's liability.
2.6 - The Client expressly acknowledges itself as the editor of the Website and assumes the corresponding responsibility, particularly the Client undertakes to comply with all applicable regulations for websites in general, e-commerce sites, and its field of activity, so that LOBSTTER is never concerned about this.
ARTICLE 3 – LOBSTTER's Advisory Obligation
As part of an obligation of means, LOBSTTER acknowledges being bound by an obligation to advise, particularly by providing information and recommendations to the Client, so that the execution of this Contract meets the objectives clearly expressed beforehand by the Client. Nevertheless, the Client expressly acknowledges that LOBSTTER is not a professional in the Client's field of activity and, as such, cannot provide advice in that area.
ARTICLE 4 – Website Creation and Administration
4.1 - The Client entrusts LOBSTTER with the creation and implementation of all or part of its Website, particularly under Shopify license. LOBSTTER also offers Specific Developments to extend Shopify's functions. The services are detailed in the Quote or in the Specifications, if applicable.
4.2 - Schedule
LOBSTTER will implement the best and most reasonable means to adhere to the schedule set with the Client in the Quote or Specifications.
Nevertheless, the Client acknowledges that this schedule is indicative, given the recognized specificities of IT and the strong human dimension of the indispensable collaboration between the Parties in the execution of the Contract.
In the event of delay due to a non-performance attributable to the Client under its obligation of collaboration or its obligation of payment, or to a third party, no claim for damages may be made by the Client against LOBSTTER.
The Client must take into account the deadlines of its own service providers, if these have an impact on the Services. In this context, the schedule may need to be adapted due to LOBSTTER's other commitments and future availabilities, which the Client accepts.
4.2 - Acceptance and Tests
Acceptance concerns not the elements specific to the Shopify platform but solely their implementation or Specific Developments. The Client accepts the terms of use of the Shopify platform, which are found on the website https://shopify.com
LOBSTTER provides the Client with a temporary URL address of the Website allowing the latter to view the provisional version online.
The Client then performs tests that must demonstrate the conformity of the provisional version, including its functionalities, with the Specifications.
The Client has a period of fifteen (15) working days from the submission of the provisional version to approve or reject this version, by precisely listing its observations.
As soon as the Client has submitted all of its observations, in a single document – by email, for example – LOBSTTER proceeds with the modifications to the provisional version and provides the modified version within a maximum of ten working days from the receipt of the observations.
The corrections requested by the Client from LOBSTTER must strictly correspond to the elements described in the Specifications and accepted by LOBSTTER. New requests expressed by the Client will be billed additionally, after prior acceptance by the Client of the corresponding Quote.
After identifying and correcting any non-conformities or malfunctions observed during the tests carried out on the provisional version, LOBSTTER delivers to the Client a definitive version of the Website which will be subject to an acceptance report, signed by both Parties.
In the event of the Client refusing to sign the final acceptance report, the Client expressly undertakes to clearly state, in writing, and with all details, the reasons for its refusal within eight calendar days from the date LOBSTTER sends the final acceptance report. Given the customary practices and the Client's duty of collaboration, which the Client expressly acknowledges, in the absence of a written response meeting these conditions, the Website will be considered compliant after this deadline.
Within 48 hours following the signing of the final acceptance report, if all payments have been made, LOBSTTER will proceed with the launch of the Website.
ARTICLE 5 – Assistance
LOBSTTER provides assistance to the Client for any questions related to the implementation of the Website. This assistance consists of providing the Client, via tutorials or by email to info@lobstter.com, with the explanations needed to use the functionalities of the Website.
Access to assistance only applies during a period defined in the Specifications or the Quote. The Client undertakes to follow all training recommended by LOBSTTER. Otherwise, assistance may be refused. The Client acknowledges that the quality and response time of LOBSTTER in the context of assistance depend on the training of users and their active collaboration with the Client.
ARTICLE 6 – Maintenance
6.1- The maintenance services for the Deliverables are provided as an option, under the conditions defined in the Quote. They include preventive and corrective maintenance of the Deliverables.
When subscribed, preventive maintenance aims to implement updates consisting of either bug fixes or the transition from a minor version to another. The maintenance performed depends on Shopify updates.
Corrective maintenance of the Deliverables consists of correcting all Anomalies encountered by the Client.
6.2 – Lobstter's Intervention under the Subscribed Option
When the Client identifies an Anomaly, they report this Anomaly to info@lobstter.com, detailing the error messages. Based on what the Client communicates to LOBSTTER, LOBSTTER qualifies the Anomaly.
The restoration time depends on the qualification retained.
LOBSTTER may propose a workaround as a temporary solution to an Anomaly.
6.3 – Services not included in corrective Maintenance Services
LOBSTTER's interventions under corrective maintenance do not cover:
- The reconstruction of Data in case of accidental destruction or alteration,
- File backups and operational entries,
- Modifications or additions of functionalities made by the Client, or by a third party;
- Consequences of changes to the Client's information system,
- Services made necessary due to non-compliance with documentation and Client obligations under the Contract,
- Training of Client personnel or service providers in the use of the Website,
- Maintenance of the Client's information system, updates to its software and Internet connection,
- Services made necessary due to the Client's refusal to accept a modification (updates or new versions).
Any intervention by LOBSTTER in the aforementioned cases may be invoiced according to LOBSTTER's usual financial conditions for all clients.
6.4 - Evolutionary Maintenance - Updates & Upgrades
In this case, the Parties will come together to mutually define the financial conditions associated with the service concerned. The response time is generally 24 hours on weekdays, excluding public holidays and vacations.
6.5 - Backup
Before any intervention by LOBSTTER, the Client undertakes to back up its Data to another medium. This requirement is recognized as legitimate by the Client. The Client is solely responsible for the retention, backup, and restitution of Data; which the Client expressly acknowledges.
6.6 - LOBSTTER cannot be held responsible for damages resulting from:
- non-performance or improper performance by the Client or one of its subcontractors of the obligations incumbent upon it under this Contract,
- an Anomaly caused by modifications made to the Website or software and/or hardware operating with it, by the Client or any third party intervening under the Client's control or any third party not authorized by LOBSTTER,
- a configuration error on the part of the Client
- a Malicious Program
ARTICLE 7 – Intellectual Property
Apart from third-party developments, the Deliverables produced by LOBSTTER are original and are therefore, in accordance with article L111-1 of the Intellectual Property Code, protected by copyright.
Similarly, the graphic interface and the databases of the Website are a set of creations bearing intellectual property rights of which LOBSTTER may be the owner.
As part of their collaboration, LOBSTTER grants the Client a non-exclusive right to use the Deliverables, worldwide, for the legal duration of copyright protection, in all languages and on all media and communication means, known or unknown to date.
Rights not expressly mentioned in this clause shall remain the property of LOBSTTER. Any additional request, particularly the right of distribution, shall be subject to a financial proposal from LOBSTTER.
Intellectual property rights are transferred to the Client only upon full payment of the price specified in the Quote(s), principal and accessories. In the event that the price is not fully paid and collected, the intellectual property rights are therefore not transferred.
ARTICLE 8 – RESERVATION OF OWNERSHIP CLAUSE FOR MATERIALS
LOBSTTER retains ownership of the Deliverable materials until full payment of the price in principal and accessories. Failure to pay, even partial, authorizes LOBSTTER to reclaim the Deliverables.
ARTICLE 9 – Guarantee relating to intellectual property rights
The Client guarantees that it has all rights to use all elements transmitted to LOBSTTER, such as trademarks, logos, music, video, hyperlinks, etc., and which would be useful for the performance of the Services. It is also responsible for the content of statements written by internet users and its employees. It is responsible for monitoring these.
The Client guarantees, at its own expense, the defense in any potential action brought against LOBSTTER insofar as this action would arise from an allegation that a text, words, photograph, video, trademark, logo and/or hyperlink or other, not produced by LOBSTTER in the context of the Contract, could be qualified as infringing or an act of unfair competition, parasitism, disparagement, or misleading advertising, or, more generally, would engage LOBSTTER's liability. The Client shall pay all costs (including, but not limited to, expert and attorney fees within a reasonable amount) and damages awarded against LOBSTTER.
ARTICLE 10 – Financial Conditions
10.1 - The financial conditions are specified in the Quote. Any modification of the Quote and, more generally, of the Services will result in the establishment of an additional Quote.
All travel expenses (transportation, meals, hotel) of LOBSTTER are the responsibility of the Client. They will be invoiced to the Client at cost.
In the absence of details in the Quote, the Client undertakes to comply with the following payment terms:
- 40% deposit before any execution begins
- Regular payment according to the actual progress of the Services, less the amount of the deposit.
- Payment of the balance before going live.
For Maintenance Services, the following payment terms apply: the first day of the commencement of the Service. The daily rate is revised automatically and without formality on January 1st of each year (n), according to the following formula: P= Po*S/So P = revised price excluding taxes Po = price excluding taxes in force before revision S = value of the Syntec index for October n-1. So = value of the Syntec index for October n-2.
10.2 - Late Payment
By express agreement, and unless a delay is requested in time and specifically granted in writing by LOBSTTER, the total or partial failure to pay any sum due under the Contract by its due date will result automatically and without prior formal notice, and without prejudice to the provisions established in the Special Conditions regarding termination:
- the immediate exigibility of all sums remaining due by the Client under the Contract, regardless of the agreed payment method;
- the invoicing to the Client of late payment interest equal to three times the legal interest rate, the latest rate published on the invoicing date, the interest being due solely by virtue of the contractual term's expiry. Interest is calculated prorata temporis over a one-month period.
Furthermore, in case of late payment, the Client is automatically liable for a flat-rate indemnity for collection costs of forty (40) euros. These costs may be invoiced at actual cost upon presentation of supporting documents (e.g., bailiff's fees, lawyer's fees, etc.).
10.3 - Any disagreement concerning billing must be motivated by sending a registered letter with acknowledgment of receipt addressed to LOBSTTER, within eight days of the invoice issuance date. In the absence of this procedure, the Client will be deemed to have accepted it and considered to be in default in case of non-payment.
10.4 - Automatic evolution of financial conditions – application of the SYNTEC index
The price indicated in the Quote is revised automatically and without formality on January 1st of each year (n), according to the following formula: P= Po*S/So P = revised price excluding taxes Po = price excluding taxes in force before revision S = value of the Syntec index for October n-1. So = value of the Syntec index for October n-2.
In the event of the removal of this index for any reason whatsoever, it will be automatically replaced by a similar replacement index relevant to LOBSTTER's activity. The Client may only contest this new index during the month following the date of dispatch of the letter notifying them of the revised prices. In case of dispute, the replacement index will be determined by an expert appointed by mutual agreement between the Parties or, failing that, by the President of the Commercial Court of Nantes seized at the request of the most diligent Party. The costs will be shared equally between the Parties.
LOBSTTER informs the Client, who accepts, that it will pass on any price increase experienced from its suppliers or subcontractors. The increase will take place each year on the anniversary date of the Contract, after prior notice 30 days before the implementation of the increase. LOBSTTER will provide the Client, upon first request, with the elements demonstrating the said structural increases incurred.
ARTICLE 11 – Insurance
Both Parties declare that they are insured for their professional civil liability (particularly to cover the financial consequences of bodily, material, and/or immaterial damages caused during the execution of this Contract or resulting directly from the performance of the services by their personnel or collaborators), with a notoriously solvent company, and will provide the other Party, upon first request, with an insurance certificate. Any insufficient guarantee shall be borne by the Party originating it.
ARTICLE 12 – LOBSTTER's Obligations and Liability
12.1 - LOBSTTER's obligations under this Contract are expressly recognized by the Client as obligations of means. Thus, LOBSTTER will implement the best known and reasonable means in compliance with industry standards, in accordance with applicable laws and regulations, and in accordance with the ethics of its profession to perform the services thus contracted.
12.2 - LOBSTTER's liability can therefore only be incurred upon demonstration of fault attributable to LOBSTTER.
ARTICLE 13- Limitation of LOBSTTER's Liability
LOBSTTER cannot be held liable in cases of force majeure as described below or in case of fault by a third party.
It is expressly agreed between the Parties that LOBSTTER's liability, if LOBSTTER's fault is recognized, does not cover indirect damages such as operating losses, loss of profit, commercial or financial damage, increase in overheads, potentially suffered by the Client.
It is expressly agreed that, if LOBSTTER's liability is judicially recognized in the performance of the Contract, the Client may not claim indemnities and damages other than the reimbursement of payments made by it, under this Contract, capped at the amounts paid in the last three months of the contractual relationship.
ARTICLE 14 - Client's Obligations and Liability
14.1 - The Client undertakes to scrupulously follow the instructions given by LOBSTTER, particularly those relating to the use of the Website.
14.2 - The Client undertakes to comply with the legal and regulatory obligations relating to its field of activity and to the regulations applicable to websites and e-commerce sites in particular. It is the sole manager of its Website, of which it is the sole publisher. Any breach of the aforementioned legal and regulatory provisions constitutes a serious breach of the Contract. If applicable, LOBSTTER reserves the right to terminate the Contract according to the provisions of the "Termination for non-performance" clause.
14.3 - The Client retains full responsibility towards third parties for compliance with regulations on the processing of personal data and in particular undertakes to comply with the provisions of the GDPR and the Data Protection Act. The Client is responsible for complying with the obligations arising from the law regarding the collection and processing of personal data carried out during the Service and in particular for making available to all internet users the personal data protection policy. The Client acknowledges that LOBSTTER has duly informed it of the need to comply with these obligations. LOBSTTER acts as a data processor within the meaning of the GDPR under the conditions set out in the annex (Annex I).
14.4 - In the case of software developments under Shopify license, the Client is responsible for acquiring and maintaining the Shopify usage license for the entire duration of the developments' operation. LOBSTTER is not responsible for the content of the Shopify platform.
14.5 – It is the Client's responsibility to regularly back up its data.
ARTICLE 15 – Suspension of the Contract
LOBSTTER reserves the right to suspend the performance of the Services in the following cases:
- total or partial non-payment of LOBSTTER's invoices,
- acceptance report not returned by the Client according to the acceptance procedure applicable to the Service concerned,
- Non-compliance with an injunction issued by LOBSTTER by sending an email to the Client's contact person,
- Service abuse,
- Judicial decision.
The suspension of the service(s) concerned will take effect 8 (eight) calendar days from the date LOBSTTER sends the Client a formal notice to act, by registered letter with acknowledgment of receipt. Nevertheless, in the event of a judicial decision, the suspension will be immediate and without notice.
During the suspension period, the contractual provisions not affected by the suspension remain in force.
After a period of 1 month, LOBSTTER reserves the right to apply the provisions of the article "Termination for non-performance".
ARTICLE 16 – Non-Solicitation
During the term of this Contract and for a period of twelve (12) months following its termination, for any reason whatsoever, neither Party shall directly or indirectly solicit for hire, nor hire any collaborator or employee holding a position on the date of termination of the Contract or any employee who has resigned (or has entered into a conventional termination agreement) less than one year prior to the date of termination of the Contract, without the prior written consent of LOBSTTER.
In the event of authorized hiring, the Party concerned guarantees the said employee's compliance with the general commitment to loyalty and secrecy towards their former employer.
Each Party guarantees compliance with this clause by the other companies in its group.
In the event that one of the Parties violates this provision, it undertakes to compensate the other Party by paying an indemnity equal to 1 year of gross remuneration of the collaborator(s) concerned, without prejudice to any possible legal recourse in case of higher damage.
ARTICLE 17 – Force Majeure
Considered as cases of force majeure with regard to LOBSTTER's obligations are events beyond its control and which it cannot reasonably be expected to foresee, insofar as their occurrence makes the performance of its obligations more difficult or more costly.
This will be the case in all circumstances, even if they do not fall within the aforementioned definition, particularly in cases of total or partial internal or external strikes, company lock-outs, floods, fires, storms, natural disasters, epidemics, water damage, computer failures, accidents, revolts, demonstrations, acts of vandalism, total or partial deletion or blocking, regional, national or international, of telecommunication networks for any reason whatsoever, total or partial blocking of transport and/or supply means.
It is agreed between the Parties that any difficulties specific to telecommunication networks or technical failure caused by malicious acts (e.g., hacker attacks, denial of service) and preventing the performance of the Services shall constitute a case of force majeure within the meaning of this article.
The party invoking a case of force majeure must immediately send an express and registered notification to the other party. The parties will then meet to discuss the consequences of such a situation and find acceptable solutions to ensure the performance of the Services. As soon as the hindering effect due to the force majeure event ceases, the obligations of the Contract will regain force.
However, in the event that the suspension of the obligations arising from the Contract proves to be of a duration greater than 3 (three) months, each of the Parties shall be entitled to terminate the Contract at any time, by registered letter with acknowledgment of receipt, from the expiration of this suspension period, without compensation from either party.
ARTICLE 18 – Confidentiality – References
18.1 - Each Party undertakes to keep confidential the information and documents concerning the other Party, of whatever nature, to which they have had access within the framework of their relations and which are indicated as "confidential" or should reasonably be considered as such given their nature and the circumstances of their disclosure. Confidential, even in the absence of express mention, are the knowledge and know-how implemented by LOBSTTER for the performance of the Services, and generally the reports and draft Deliverables.
18.2 - The Client expressly authorizes LOBSTTER to cite among its references, particularly on its website and for commercial prospecting purposes, the Client's name and the existence of the Services, as well as an excerpt from the Deliverables.
ARTICLE 19 – Modifications to the Contract
LOBSTTER reserves the right to modify the provisions of the Contract at any time. The modifications will be brought to the Client's attention by registered letter with acknowledgment of receipt and will come into force 60 days after their reception by the Client.
In case of disagreement from the Client, the latter may exercise its right of termination by informing LOBSTTER by sending a registered letter with acknowledgment of receipt. On this ground, the termination will take effect 30 days after receipt of the termination letter by LOBSTTER.
ARTICLE 20 – Subcontracting
LOBSTTER is free to subcontract all or part of the services to a third party of its choice. LOBSTTER remains bound to the Client under the terms of the Contract for all Services performed by its potential subcontractor, particularly with regard to the provisions of the GDPR (see Annex 1).
ARTICLE 21 – Undisclosed Work
LOBSTTER declares on its honor that it complies with the provisions of articles L8221-3 and L.8221-5 of the Labor Code (formerly article L324-10) on undisclosed work and the provisions of articles L5221-8, L5221-11 and L8251-1 of the Labor Code (formerly article L341-6) on foreign workers, with regard to the persons it employs. It undertakes in particular to have the services covered by the Contract performed only by regularly employed persons, particularly with regard to articles L.1221-10, L.3243-2 and R.3243-1 of the Labor Code.
Under these conditions and in order to comply with the provisions of articles L8222-1, L8222-2, L8222-3 and R8222-1 of the Labor Code (formerly L324-14) and articles L8254-1, L8254-2, L8254-3 and L8254-4 of the Labor Code (formerly L341-6-4), LOBSTTER provides the Client, upon conclusion of the Contract, and then every 6 months:
- all documents required by article D8222-5 of the Labor Code (formerly R324-4);
- the affidavit required by articles D8254-2, D8254-4 and D8254-5 of the Labor Code (formerly R341-30).
The provisions of this article constitute an essential condition of the Contract, without which the Client would not have contracted. In the absence of LOBSTTER providing the Client every six months until the end of the performance of the services covered by this Contract with the documents mentioned in this article, this Contract may be immediately terminated by the Client without any notice, upon receipt of a registered letter with acknowledgment of receipt and without prejudice to any damages that the Client may be entitled to claim from LOBSTTER.
ARTICLE 22 – Duration - Termination of General Conditions
The Contract takes effect from the date of acceptance of the Quote by the Client, for a duration specified in the Quote. Failing such specification, the Contract will end on the completion date of the Services.
ARTICLE 23 – Termination for Non-Performance
23.1- The Contract may be terminated by either Party in the event of non-compliance with any of the obligations of the Contract.
Early termination will take effect automatically 30 days after a formal notice sent by registered letter with acknowledgment of receipt to the defaulting Party, indicating the intention to apply this express termination clause, and having remained wholly or partly without effect.
Termination will occur without prejudice to any other rights or actions that the Party victim of the default may assert against the defaulting Party.
23.2 - The Contract will be terminated immediately upon the first presentation by La Poste services of a registered letter with acknowledgment of receipt:
- Breach of essential obligations mentioned in the Contract;
- Irremediable breach;
23.3 - Consequences of Termination
In the event of termination of the Contract, whatever the cause, LOBSTTER undertakes to return to the Client, as soon as possible, all elements belonging to it.
In the event of non-performance of contractual obligations by the Client (lack of collaboration, non-payment of sums due (non-exhaustive list)), the sums due, not yet invoiced, will become immediately due. The sums previously paid by the Client will remain acquired by LOBSTTER, without prejudice to any potential claim for damages.
ARTICLE 24 – Assignment of the Contract
The benefit of the Contract may not be assigned or transferred to a third party without the prior written consent of the other Party.
By way of derogation, each Party may, subject to prior notification to the other Party and under its sole responsibility, freely assign and/or transfer the benefit of this Contract to any third party of which it directly or indirectly holds the majority of its share capital or whose share capital is majority-owned by an entity identical to that which holds the majority of its share capital.
ARTICLE 25 – Miscellaneous Provisions
25.1 – Nullity
In the event that any provision of the Contract is declared null or without effect, in any way and for any reason whatsoever, it shall be deemed unwritten and shall not entail the nullity of the other provisions. In this hypothesis, the Parties undertake to renegotiate in good faith, the wording of a new clause replacing the clause thus declared null, inapplicable or non-compliant.
25.2 – Non-Waiver
Any failure to exercise or delay in exercising a right or prerogative by one Party shall not be considered a waiver of that right or prerogative for the benefit of the other Party. Likewise, the exercise of a single right or the partial exercise of a right or prerogative does not preclude in advance the exercise of any other right or prerogative provided for in the Contract. No waiver shall be effective unless it is stipulated in writing, signed by a representative of each of the Parties.
25.3 – In case of translation of the Contract, only the French version shall prevail.
25.4 – Declaration of reciprocal independence
Each Party is an independent contractor and nothing in this Contract shall create a de facto or de jure partnership, joint venture, mandate, franchise agreement, commercial agency agreement or employment relationship between the Parties. The personnel of each Party shall remain under the hierarchical authority of the Party that employs them.
25.5 – Value of email
The Parties accept and recognize as valid any exchange by email between them.
ARTICLE 26 – Dispute Resolution
26.1 - This Contract and the relations between the Parties are governed exclusively by French law.
26.2 – Amicable settlement
Any dispute relating to the Contract, particularly arising from its signing, execution, interpretation, termination, or validity, must imperatively be subject to an attempt at amicable resolution by the Parties.
To this end, the Parties agree to meet within 15 (fifteen) days of receipt, by one of the Parties, of notification of said dispute by registered letter with acknowledgment of receipt sent by the other Party.
In the absence of an amicable settlement of the dispute within 15 (fifteen) days of the meeting of the Parties under the conditions mentioned in the paragraph above, the dispute shall then be submitted to the competent jurisdiction according to the modalities defined hereafter.
26.3. In the event of any dispute or litigation relating to the Contract or, more generally, to the relations between the Parties, the courts within the jurisdiction of LOBSTTER's registered office shall have sole jurisdiction, even in the event of an interim application, third-party notice, or multiple defendants.
ANNEX 1: PERSONAL DATA PROTECTION
ARTICLE 1 - General Provisions
The Parties acknowledge their compliance with all legal and regulatory provisions relating to the protection of personal data. As such, each Party acknowledges its own compliance with the provisions of the European General Data Protection Regulation (EU) 2016/679 (GDPR) as integrated into French law.
ARTICLE 2 – LOBSTTER's Commitments
LOBSTTER, in its capacity as processor, undertakes to:
- Process personal data solely for the purpose(s) subject to processing
- Comply with the documented instructions of the data controller, the Client.
In accordance with Article 28 3 a) of the GDPR, if LOBSTTER considers that an instruction constitutes a violation of the GDPR, it shall immediately inform the Client.
- Guarantee the confidentiality of personal data and, as such, ensure that persons authorized to process personal data commit to respecting confidentiality or are subject to an appropriate legal obligation of confidentiality.
- Provide assistance to the Client, upon first request from the latter, for the conduct of impact assessments relating to the protection of personal data. LOBSTTER may also assist the Client in conducting prior consultation of the supervisory authority. In both cases, a preliminary quote from LOBSTTER must be accepted by the Client.
ARTICLE 3 - Audit Request
In the event of an audit request from the Client, the Client undertakes to have the audit carried out by an independent auditor and to inform LOBSTTER at least 8 working days in advance and during a period that does not disrupt LOBSTTER's activity. The Client undertakes to transmit the conclusions of the audit to LOBSTTER as soon as it becomes aware of them.
All costs related to audit operations are borne by the Client.
Article 4 – Client's Obligations
LOBSTTER reminds the Client that:
- The latter must maintain its processing records (Art. 30 GDPR), appoint a data protection officer if applicable, etc.
- It must always document its instructions to LOBSTTER and organize the supervision of processing operations.
Article 5 - Information to Data Subjects
LOBSTTER reminds the Client that it must inform data subjects of their rights of access, inquiry, rectification, opposition, right to erasure, right to restriction of processing, and right to data portability, and the means to implement them.
Article 6 - Obligation of collaboration
Each Party undertakes to inform the other in the event of any modification to the structure of its tools, products, applications or services that could have an impact on compliance with the GDPR. In this respect, each Party undertakes to respect the principles of data protection by design and data protection by default.
Instructions or any other information exchanged between the Parties and having an effect on compliance with personal data protection must necessarily be in writing.
As far as possible, LOBSTTER undertakes to provide assistance to the Client, upon the latter's first request, within the framework of a Quote previously accepted by the Client.
ARTICLE 7 - Notification of personal data breaches
LOBSTTER shall notify the Client of any personal data breach within a maximum of 48 hours after becoming aware of it, in writing and by registered letter with acknowledgment of receipt. This notification shall be accompanied by all useful documentation to enable the Client, if necessary and under its responsibility, to notify this breach to the competent supervisory authority.
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