DES ENJEUX ET DES HOMMES (hereinafter "E&H") organizes and provides Training services, some falling within the field of continuing vocational Training as defined in Articles L.6313-1 and following of the French Labour Code ("CVT"), for which E&H made a declaration of activity to the DIRECCTE (“Direction Régionale des Entreprises, de la Concurrence, de la Consommation, du Travail et de l'Emploi”) under number 73320054132; this declaration does not constitute a state approval.
ARTICLE 1. CONTRACT DOCUMENTS
1.1 The contract between E&H and the Client consists of the current versions of the following documents, presented in descending order (hereinafter the "Contract"):
(i) the order (the "Order"),
(ii) the present terms and conditions (the "Terms and Conditions").
1.2 In case of contradiction between the provisions contained in documents of different ranks, the provisions of the higher rank document shall prevail.
ARTICLE 2. DEFINITIONS
"Client" refers to a natural person or legal entity committed to E&H for the performance of the service covered by the Contract.
"Identifiers" refers to ID and password allowing access by the Client and/or Participants to the Platform. "OPCA", in French
“Organismes Paritaires Collecteurs Agréés”, refers to entities in charge of collecting the funds for the CVT and funding the Training of employees under the provisions of the French Labour Code.
"Participant" refers to the person designated by the Client in the Order to attend or benefit from the Training.
"Platform" refers to the learning online platform through which an online Training is performed.
"Training" refers to face-to-face or online training supplied by E&H to the Client and described in the Order, which also states if the Training falls within the scope of CVT.
"Training Materials" refers to the modules, Training materials and other educational resources as defined in the Order and made available to the Client for the Training.
ARTICLE 3. PURPOSE
3.1 The Client entrusts E&H with the performance of the Training described in the Order.
3.2 The performance of the Training will comply with the provisions of the Order.
ARTICLE 4. FACE-TO-FACE TRAINING
4.1 When participating in the Training, the parties undertake when appropriate to respect the internal regulations of the other party or applying to the premises where the Training takes place.
4.2 The Parties will be responsible for the compliance with these provisions by the trainers and Participants.
4.3 E&H reserves the right to exclude from any Training, and at any time, any Participant whose behavior interferes with the proper conduct of the Training and/or severely violates the provisions of the Contract.
ARTICLE 5. ONLINE TRAINING (E-LEARNING)
5.1 The operation and access to the Platform will be made in accordance with the terms notified to the Client when signing the Order.
5.2 The Client declares having the skills and means necessary (including technical) to access the Platform and cannot subsequently claim an incompatibility or lack of access to the Platform.
5.3 All Training Material for online Training will be made available to the Client on the Platform after acceptance of the Order.
5.4 Access to the Platform is made with Identifiers provided to the Client for each Participants on the basis of the information provided by the Client, these Identifiers being confidential, personal and non-transferable. The Client: (i) is responsible for the management and conservation of the Identifiers and will accordingly implement all precautionary measures necessary for their protection and conservation; (ii) is responsible for the consequences of the use of the Identifiers; (iii) undertakes to inform E&H as soon as it becomes aware of any fraudulent use of Identifiers, of which E&H can in no way be held responsible.
5.5 The Client can access the Platform and use the Training Materials during the period specified in the Order or failing this, during a period of 1 month from the communication of the Identifiers, under the conditions referred to in Article 11. After the deadline specified in the Order or the period of 1 month, the Training Materials and access to the Platform will cease immediately and the Client will need to make a new order.
5.6 E&H undertakes to make its best efforts to allow permanent access to the Platform, but cannot be held liable for connection problems during maintenance on the server or technical constraints of the Internet network, or in case of disruptions due to providers, hosters and Internet service providers.
5.7 In case of maintenance, E&H will endeavor to inform the Client by any means and in advance of the date and time of maintenance.
5.8 The Client undertakes to inform E&H within 24 hours of any technical malfunction, so that E&H may make its best efforts to remedy the situation as soon as possible.
5.9 In case of impossibility of access to the Platform for a period of at least 24 hours, duration of access will be extended for a period equal to the lack of access to the Platform. The Client acknowledges that the extension mentioned above will be the only available remedy.
5.10 The offered service complies with French Circular No. 2001/22 of 20 July 2001 issued by the General Delegation for Employment and Vocational Training on open and distance learning (e-learning).
ARTICLE 6. PAYMENT
6.1 In consideration of the services provided herein, the Client undertakes to pay E&H the fees aimed at in the Order accepted by the Client by signing it.
6.2 Fees are liable to change and, where appropriate, will be invoiced separately if any of the elements used for calculation thereof are modified if additional E&H services are required for performance of the Training.
6.3 Invoices, which E&H may issue prior to performance of the service, shall indicate the terms for payment of fees and are payable 30 days end of month following issuance of the invoice. There will be no discount for early payment.
6.4 If the Client wishes the payment to be done by an OPCA, it will be its responsibility (i) to apply for support before the start of Training and to ensure the successful completion of the application (ii) to expressly inform E&H, which will indicate it the Purchase Order, (iii) to ensure the successful completion of the payment by the OPCA. In case of partial payment of the cost of Training by the OPCA, the balance will be charged to the Client. Should E&H not receive the payment of the OPCA on the last day of Training at the latest, the Client will be charged the full cost of the Training. In case of non-payment by the OPCA, for any reason whatsoever, the Client will be liable for the full payment of Training and will be charged the corresponding amount.
6.5 Any delay in payment will result ipso jure and without any notice of default being required in the payment of penalties for late payment on the basis of ECB rate plus ten (10) points and the payment of a lump sum of forty euros (40€) for recovery expenses, in accordance with the decree 2012-115 of the 2nd of October 2012.
6.6 E&H will be entitled to suspend performance of the service covered by the Contract until all outstanding invoices have been paid in full, without non-performance being considered as attributable to E&H.
ARTICLE 7. NON-REALIZATION OF TRAINING
7.1 Any cancellation of participation by the Client must be confirmed in writing (fax, email, mail). However, online Training cancellation will not be accepted once the Client or the Participant have used the Identifiers allowing access to the Platform.
7.2 Replacements of Participants are allowed provided (i) information of E&H in writing at least seven (7) business days before the scheduled date, and (ii) replacement of the initial Participant is done with an employee of the same company and in the same conditions as the initial registration and complying, if any, with the eligibility requirements of the Training.
7.3 If the number of participants in a Training is considered inadequate for educational reasons, E&H reserves the right to cancel this Training no later than seven (7) business days before the scheduled date.
7.4 E&H will reimburse to the Client the sums unduly received in case of total or partial realization of the Training for reasons attributable to E&H or to the Client.
7.5 Notwithstanding the foregoing, should the Client cancels the Training within ten (10) business days before the scheduled date, it undertakes to pay the sum of 25% of the total due amount for the service as compensation. This amount cannot be allocated to the obligation of participation under the CVT and the Client cannot claim reimbursement or payment by the OPCA as the case may be.
ARTICLE 8. TERM OF THE CONTRACT
8.1 The Agreement enters into force on the date of signature of the Purchase Order, and shall terminate on the date stated in it, or failing that, after completion of the Training.
8.2 A party may terminate the contract with immediate effect if the other party fails to regularize the breach of any of its obligations under the Contract within two weeks after receiving an order to that effect from the non-defaulting party, without prejudice to damages which it may claim.
ARTICLE 9. RESPONSIBILITY
9.1 E&H is under an obligation of best endeavours with regard to the performance of the Training, consisting in accompanying the Participant during the Training, through the technical and human resources E&H makes available to the Participant. The success of the Training depends exclusively on the will and commitment of the Participant.
9.2 Participation in the Training performed by E&H results in the issuance of a certificate for each Participant. The Client acknowledges that this certificate is not a diploma or a qualification recognized by any public authorities.
9.3 E&H can only be held liable in the event of a breach of its essential obligations as stipulated in the Contract.
9.4 If any legal action is taken to establish the liability of E&H, compensation will only be paid for any direct, current, personal, established loss to the exclusion of any indirect loss, in accordance with the provisions of the French civil code.
9.5 In any event, the maximum amount for which E&H may be liable, for each claim arising from the Contract, shall be capped at the equivalent of twenty (20) times the fees payable to E&H in the framework of the Contract.
9.6 The Client undertakes to do all that is necessary in order to limit as far as possible any loss that may be sustained on account of a fault committed by E&H.
9.7 This clause shall survive the expiration, termination or disappearance of the Contract for any reason whatsoever.
ARTICLE 10. CONFIDENTIALITY
10.1 All information obtained through performance of the service covered by the Contract shall be considered as confidential, particularly that relating to the Client and the Participants.
10.2 E&H undertakes to keep confidential any information relating to the Client and described in Article 10.1 and to ensure that any of its employees, representatives, agent or subcontractor involved in implementation of the Contract, who may have occasion to hold or obtain any such information, also undertake to protect this confidentiality and not to use it for their own gain or for the gain of a third party, unless within the context of performance of the service covered by the Contract.
10.3 The following information shall not be considered confidential and shall not impose an obligation of confidentiality: (i) information already known or available to the public, in the absence of any wrong being committed within the context of this Contract, (ii) information received legally from a third party without breach of this Contract, (iii) information which by law or under any regulations or judicial or administrative decision must be disclosed by E&H to the French or foreign judicial or administrative authority.
10.4 The obligations of confidentiality under this section shall survive for a period of five (5) years as from the termination of the Contract.
ARTICLE 11. INTELLECTUAL PROPERTY - COPYRIGHT
11.1 Unless otherwise provided in the Order: (i) all Training Materials given or made available to the Client or to Participants in the framework of the Training are original works and as such are protected by laws on intellectual property and copyrights; (ii) E&H grants the Client a non-exclusive, non-assignable and non-transferable authorization to use the Training Material, this authorization being limited to the framework of the Training and to the Participants referred to in the Order; (iii) the Client agrees NOT to use outside the framework of the Training, to reproduce, directly or indirectly, in whole or in part, to adapt, to modify, to translate, to represent, to market or to distribute to members of its staff not participating in the Training or to third parties, the Training Materials made available without the express and written consent of E&H; (iv) the Client agrees not to make any copy of a software used as part of the Training, with the exception of the exercises performed provided that the files do not include in any way parts of the software protected by any law whatsoever.
11.2 The Client guarantees the respect of these prohibitions by the Participants and remains consequently jointly liable with them.
11.3 E&H retains ownership of its tools, methods and know-how developed previously or during its service provision to the Client.
11.4 This section shall survive the expiration, termination or disappearance of the Contract for any reason whatsoever.
ARTICLE 12. PERSONAL DATA
According to Article 6 of French Law No. 78-17 of 6 January 1978 on computers, files and liberties, as amended by Law No. 2004-801 of 6 August 2004, E&H implements treatment of personal data for the purpose of managing the applications to the provided Trainings. The information requested from the Client is required to process the registration of Participants and are intended for use by E&H departments. The Client and each Participant can access this information and request correction to E&H, 3 rue du Louvre, 75001 Paris – personaldataFR@desenjeuxetdeshommes.com
ARTICLE 13. APPLICATION AND BINDING NATURE OF THE CONTRACT
13.1 No specific conditions or terms of purchase of the Client may prevail over the Terms and Conditions unless officially agreed in writing by E&H. Any condition to the contrary upheld by the Client will therefore be void as against E&H, regardless of when it may have been brought to its attention, unless expressly agreed otherwise.
13.2 Should E&H decide not to enforce its rights in accordance with the provisions of the Contract at any given time, this may not be interpreted as a waiver to enforce such rights at a later date in accordance with the provisions in question.
13.3 If any of the provisions of the Contract is declared null and void or inapplicable by a court or by virtue of the law, the other provisions shall remain in force and with full effect, insofar as they are provided for by law.
13.4 The Contract cancels and replaces any previous contracts with the same subject that may have been signed between the Parties.
ARTICLE 14. MODIFICATION OF THE CONTRACT
14.1 If E&H should modify the Terms and Conditions, it shall use any means to notify the Client beforehand. Any modification to the Terms and Conditions is deemed to have been accepted by the Client if the latter has not rejected them in writing sent by registered post with acknowledgement of receipt no later than one month after the entry into force of the new Terms and Conditions.
14.2 The Parties agree that E&H may not be held liable in the event that the performance of the service under the Contract is impossible or forbidden due to changes in national, European or international regulations and/or interpretation thereof, generally or relating to the service concerned by the Contract, which would result in modification or pure and simple deletion of the service covered by the Contract.
ARTICLE 15. SUBCONTRACTING
15.1 The Client is informed that all or part of the Training may be entrusted to a third party appointed for this purpose, in particular to one or more companies of the Ecocert Group.
15.2 In any case, E&H shall remain operationally, financially and legally responsible toward the Client for the subcontracted or delegated activities.
ARTICLE 16. TRANSFER
A party may not transfer the Contract to a third party in any way unless prior written approval has been given by the other party. However, the Client accepts in advance that E&H is free to transfer the Contract to another company in the Ecocert Group in any way.
ARTICLE 17. FORCE MAJEURE
17.1 Neither party shall be held liable if it is prevented from performing its obligations laid down in the Contract, insofar as their execution is delayed, hindered or prevented by a fortuitous event or force majeure.
17.2 Will be considered as a fortuitous event or force majeure, any event or circumstances external to the parties, unforeseeable, irresistible, beyond the control of the parties and that cannot be prevented by them, despite all efforts reasonably possible. Are explicitly considered as force majeure or fortuitous events, beside those usually admitted by the French courts, and without limitation, natural disasters, earthquakes, fires, storms, floods, epidemic, wars, terrorist activities, strikes, impossibility of the use of public or private transport, impossibility of the use of public or private telecommunications networks, failure to obtain permits, licenses, visas or other types of records.
17.3 The party affected by such circumstances shall notify the other by any means as soon as possible, the Contract being suspended until the disappearance of the impediment. In case of persistent impediment beyond a reasonable time, each party shall be entitled to terminate the Contract with immediate effect by sending the other party a letter with acknowledgment of receipt.
ARTICLE 18. NOTICES
18.1 The notices to be made under the Contract may be sent by letter, either registered or not, with or without acknowledgment of receipt, express mail with proof of delivery to the transporter, bailiff, fax, email, or posted or filed on the E&H client portal, in French or English.
18.2 It is the Client’s sole responsibility to provide the information necessary for the proper receipt of any mail, email or fax sent by E&H for the execution of the Contract, and to promptly notify any change to E&H.
18.3 Any mail, email or fax, registered or not, which is rejected or refused by the Client, or unable to be delivered due to a change of address that has not been notified by the Client, shall be deemed to be delivered at the date of such rejection, refusal or inability to deliver. Any registered mail that is not collected by the Client shall be deemed delivered on the date of first presentation.
ARTICLE 19. DEMATERIALISATION
The Client agrees (i) that E&H may resort to the dematerialization of some processes used in connection with the performance of the Contract, including the electronic registered letter, electronic invoice or electronic signature, (ii) to comply with the conditions applicable to the implementation of these dematerialized processes, particularly in terms of identification of the recipient, whether these conditions come from E&H or from third parties, and (iii) to grant it the same legal value as the one it attaches to paper or written documents, as permitted by French laws and regulations. In addition, the parties agree on the probative value of emails and of the scanned and digitalized signature beside the name, as well as their respective reproduction.
ARTICLE 20. LANGUAGE
The Contract is written in French. Translations into other languages may be sent to the Client upon request, but in the event of a dispute the French version shall prevail. The Client acknowledges that the French version of the Contract has been made available to it at the time of its signature.
ARTICLE 21. APPLICABLE LAW
This contract is governed by French law.
ARTICLE 22. COMPETENT COURTS
ANY DISPUTES ARISING FROM THE CONTRACT WHICH CANNOT BE SETTLED OUT OF COURT SHALL BE SUBJECT TO THE JURISDICTION OF THE COMMERCIAL COURT OF TOULOUSE, FRANCE.