Conditions Générales de Vente
Terms of sale
ARTICLE 1 – DEFINITIONS
For the purposes of the Contract, the following terms will have the definition indicated below:
Anomaly – Reproducible non-conformity of a Deliverable to its Repository.
Developments – Specific IT developments (including layouts and graphic elements) carried out by SWEET PUNK in accordance with these and the Specifications, and decided by the Parties.
Deliverables – Documents, studies, analyzes, Developments and IT deliverables (for example, a website, an intranet, extranet, application, etc.) produced by SWEET PUNK as part of the Services.
Services – Services as specified in this Agreement, in particular in the Article “Services”.
Repository – Document allowing the Customer to validate the Deliverables. For the validation of the Specifications, the Repository consists solely of the commercial proposal or, failing this, the understanding of the Customer’s expectations by SWEET PUNK. For any IT Deliverable, the Repository consists exclusively of Specifications Specifications – Document, written by SWEET PUNK and validated by the Customer, aimed at determining the nature of the Services expected by the Customer. This document can take the form of a story board, specifications, technical or functional specifications.
ARTICLE 2 – CONTRACTUAL DOCUMENTS
The relations between the Parties are exclusively governed by the following documents listed in order of their decreasing priority, namely (i) these General Conditions, (ii) the quotation or commercial proposal and (iii) where applicable, the specifications charges drawn up by the Client. All of these documents are hereinafter generally referred to as the “Contract”. In case of contradiction, the provisions of documents of higher rank will prevail over documents of lower rank.
The Contract comes into force upon acceptance by the Customer of the quote or document having the same effects.
ARTICLE 3 – OBJECT OF THE CONTRACT
The CUSTOMER entrusts SWEET PUNK, who accepts it, with the provision, under the terms and conditions specified in the Contract, of the Services. Each of the Services specified herein constitutes firm commitments by the CLIENT.
Any service not expressly provided for in the Contract and / or any extension of the scope of service must be the subject of a quote previously submitted to the written agreement of the CLIENT.
For the purposes of the execution of their respective commitments under the Contract, each of the Parties will designate a manager from among its members of staff.
ARTICLE 4 – DURATION
The duration of the Contract is,
– for the services of
communication, the time required to
the execution of these services,
– for the duration of the transfer of property rights
intellectual property referred to in Article “Property
intellectual and other rights ”;
– for the time necessary to validate the
final version of the expected IT Deliverable if applicable.
ARTICLE 5 – OBLIGATIONS OF SWEET PUNK
SWEET PUNK undertakes to perform the services as defined in the Contract, in accordance with the laws and regulations in force in France, with the usual methods and practices in the profession and with the financial conditions stipulated in this Contract.
SWEET PUNK is committed to putting its best skills at the service of the CLIENT. SWEET PUNK will set up the organization and the personnel means necessary for the proper performance of the Contract, and in particular will assign to the execution of the services a sufficient team and having all the required skills. SWEET PUNK alone determines the means, in particular in terms of team, to be implemented for the performance of its obligations.
SWEET PUNK is solely responsible for the management and discipline of its staff. SWEET PUNK personnel remain under their sole authority, direction and supervision. SWEET PUNK alone, in its capacity as employer, ensures the administrative, accounting and social management of its employees, the organization of the working hours of the staff concerned and the observance of the legal duration of working time and respect by those -these rules and regulations in terms of health and safety applicable on the CLIENT site.
In accordance with the Labor Code, SWEET PUNK, at the written request of the CLIENT and at most every 6 months if the CLIENT so requests, will give him:
– a URSSAF certificate of less than six months
certifying that SWEET PUNK has provided its
– an attestation on the honor of the deposit with
the tax administration of all
compulsory tax declarations,
– an extract from the entry in the Register of
Trade and Companies under three
month (kbis extract),
– a certificate on the honor of the realization of the
work by employees regularly employed with regard to articles L.1221-10, L.3243-2 and R.3243-1 of the labor code.
ARTICLE 6 – CLIENT’S OBLIGATIONS
The CUSTOMER undertakes to cooperate in good faith to facilitate the interventions of SWEET PUNK, in particular by providing it with as much information as possible to allow it the best possible knowledge of itself, its products, its services, its technical data, its communication strategy and its market.
More specifically, it is the CUSTOMER, under his sole responsibility, to:
– provide the necessary information and elements
for the performance of the services, this information must be complete, accurate, freely usable and in accordance with the applicable regulations. In the context of IT services, the CUSTOMER must make observations and communicate detailed information, taking into account IT environments, connected applications / software and, as often as possible, by communicating screen prints. In the possible framework of bug correction or maintenance, only reproducible anomalies and described precisely with screen prints may be taken into account for diagnosis and correction,
– respond as quickly as possible, taking into account the environment and the question concerned, to any request for information presented to it,
– designate a correspondent empowered to take any decision necessary for the provision of services. In the context of IT Services, the CUSTOMER will appoint a qualified member capable of taking the decisions inherent in the performance of said IT Services (hereinafter the “Technical Correspondent”). All problems raised or encountered by users of IT deliverables will be centralized on the Technical Correspondent,
– retain responsibility for the relationship, means and techniques used by third parties involved in the project. In this sense, the CUSTOMER must ensure alone the coordination, homogeneity and consistency of the services of third parties of SWEET PUNK. The CUSTOMER will remain solely responsible for the third-party solutions and technologies he has chosen and cannot oppose SWEET PUNK any failure, delay or quality defect which may have partially or totally originated in such third-party solutions or technologies,
– monitor services by making any necessary comments in writing,
– set up internal monitoring and validation procedures, which are decisive for the quality of services and for meeting deadlines,
– validate all the elements and information provided by SWEET PUNK,
– validate the various stages of advice, creation and production on time,
– keep SWEET PUNK informed, as far as possible, of all communication operations that it would have to carry out with third parties during the term of the Contract,
– respect the limits of the rights negotiated by SWEET PUNK,
– make any required declaration, in particular to the CNIL.
Where applicable, the CUSTOMER provides all the technical elements, materials, connections, identifiers / passwords and / or applications necessary for the performance of the Services by SWEET PUNK. The CUSTOMER remains solely responsible for the implementation of backups of its data, databases and / or files on its systems. In this regard and prior to the start of the Services, the CUSTOMER undertakes to use all means to limit the effects of the damage that may occur during the performance of the Contract. In this context and throughout the duration of the Contract, the CUSTOMER undertakes to regularly back up his / her computer system (s) on separate media. The CUSTOMER guarantees the relevance and the veracity of the information, data and elements transmitted to SWEET PUNK, and will be solely responsible towards it for all the consequences which would ensue from any information or element which is false, inaccurate, obsolete or infringing the rights of third parties. , that he would have communicated to him. The CUSTOMER is also solely responsible for compliance with the laws and regulations specific to their activity.
The CUSTOMER guarantees to SWEET PUNK that it has the brands, logos, documents, data, hardware, software and, more generally, on all the elements that it can provide to SWEET PUNK under the Contract, the all the rights, in particular intellectual property and personality, necessary for the performance of the Contract. As a result, the CUSTOMER guarantees SWEET PUNK against any claim, prosecution or legal action which finds its source in the information or elements that it can communicate to it and undertakes to take responsibility, over time, ‘all damages, costs, disbursements and fees that SWEET PUNK and its possible subcontractors could suffer as a result of the violation of a guarantee granted by the CUSTOMER.
ARTICLE 7 – SERVICES
The nature of the Services, and, if applicable, the planning and distribution of tasks are specified in the quotation or commercial document. Any extension, improvement, additional service can only be made with an addendum to the present duly accepted by the two Parties following additional estimate from SWEET PUNK. As part of an IT service, any change in requirements, however small it may be, will be subject to an impact analysis by SWEET PUNK, both in terms of costs and deadlines, and will be submitted to the CLIENT for acceptance of the endorsement.
Any validation by the CUSTOMER of a Deliverable implies validation of the Deliverable itself, its content and its compliance, in particular with regard to the regulations specific to personal data.
7.1 – Monitoring committee
A Monitoring Committee is established to facilitate the execution of the Services. The Monitoring Committee will meet as often as required by a Party. It is composed of the representatives of the Parties and / or the officers of the Parties, as well as any person necessary and accepted by both Parties.
Each meeting of this Committee will result in the establishment by SWEET PUNK of a meeting report including the content of the points examined. SWEET PUNK will send the draft minutes to the CLIENT within 5 working days of the relevant Monitoring Committee meeting. In the absence of reservations from the CLIENT within 5 working days of its receipt, the minutes of the Monitoring Committee will be considered as definitively adopted.
7.2 – Calendar of services
The contractual calendar is that accepted by the two Parties after discussion and referred to in the Special Conditions. It is indicative. As such, when a Party is unable to fulfill its obligations within the time limit, the schedule is staggered accordingly, with no possibility of claiming compensation. However, if a Party was late by its sole act, for a given deadline, by more than 50% of the total project deadline, the other Party would have the possibility of terminating the Contract.
7.3 – Photo shooting
Photo shooting sessions can be organized. In this case, the Parties will determine together the decor, the theme and the message, SWEET PUNK taking care of the rest. At the end of the shoot, the CUSTOMER will have the option of asking to restart certain shots or of requesting the reasonable modification of certain aspects of the shoot. In the absence of notification of refusal of the shoot at the end of the session the same day, the shoot and the photos will be deemed accepted by the CLIENT and billed by SWEET PUNK.
7.4 – Draw
If necessary, certain documents or creations may be printed. In this case, the Parties will determine together the elements to be printed, SWEET PUNK taking care of the rest. Before the final printing, SWEET PUNK or the printer communicates a Print Order (BAT) relating to the elements to be printed. From the signing of this proof or in the absence of notification of elements to be modified before the printing date, the proof will be deemed accepted by the CUSTOMER and the printing invoiced by SWEET PUNK.
7.5 – IT services
With regard to IT Services, if applicable, the Specifications will complete the scope of the Services. It is understood that Developments will only be carried out on the basis of the Specifications or, failing this, of the validation by the CUSTOMER of SWEET PUNK’s understanding of its expectations.
In the event of any Maintenance Services, these will come into force and will be invoiced as from the signing of the minutes of the final version of the expected IT Deliverable. For maintenance, SWEET PUNK will diagnose and correct the anomalies as follows:
– The Major Anomaly (designates a reproducible design defect, manifested by operating anomalies, prohibiting any use of the major functions) will be treated with absolute priority (“P0”). As from the reception by SWEET PUNK of an Anomaly sheet describing with precision to the best of the Customer’s knowledge the defect, SWEET PUNK will take into account the Anomaly. As such, SWEET PUNK may request from the Customer any additional information or explanation, in order to be able to diagnose and deal with the Anomaly in the most efficient way. SWEET PUNK will provide a solution or workaround for the Anomaly. If a workaround is provided, the Parties will determine how to provide a complete workaround.
– The Minor Anomaly is treated and diagnosed as soon as possible by SWEET PUNK from the receipt of an Anomaly sheet describing with precision to the best of the Customer’s knowledge the defect.
Are excluded from the maintenance, and will, following acceptance by SWEET PUNK, be the subject of a particular invoicing on preliminary estimate, the services requested due to:
– intervention or modification not authorized by SWEET PUNK of the IT Deliverable and carried out by the CUSTOMER or a third party mandated by the CUSTOMER;
– an Anomaly generated by another Client application not approved in writing by SWEETPUNK.
It is understood that SWEET PUNK cannot reconstitute the data or programs destroyed following an event beyond the control of SWEET PUNK or an error in handling by the CLIENT.
7.6 – Validation / acceptance of IT services
If SWEET PUNK were to write Specifications, this document will be deemed to be the sole reference for the needs of the Customer. As part of the validation, the CUSTOMER undertakes to validate the Specifications provided by SWEET PUNK. As from the communication of the documents by SWEET PUNK, the CUSTOMER will have a period of 5 working days to give his agreement or express reservations. Failure to reserve, on the part of the CLIENT, will lead to tacit validation of the documents. In the event that the CUSTOMER has expressed documented reservations, SWEET PUNK undertakes to present a modified document integrating the reservations or rejecting them. The modified document will be subject to a new validation by the CLIENT within 5 working days of its submission by SWEET PUNK. The lack of reservations, on the part of the CUSTOMER, at the end of the above-mentioned period, will lead to tacit validation of the document in question.
IT deliverables are made in accordance with the general principles of the Specifications. The CUSTOMER will provide within the allotted time all the texts and visuals agreed between the Parties, so that SWEET PUNK can carry out the IT deliverables efficiently. The CUSTOMER undertakes to validate the IT Deliverables delivered by SWEET PUNK. As of the communication of the IT Deliverables by SWEET PUNK, the CUSTOMER will have a period of 5 working days to give his agreement or express reservations or a period of 30 calendar days, equivalent to VSR, for the Final Deliverable (version final of a website for example). Failure to reserve, on the part of the CUSTOMER, will lead to tacit validation of the IT Deliverables. In the event that the CUSTOMER has expressed documented reservations, SWEET PUNK undertakes to present modified IT Deliverables integrating the reservations or rejecting them. The modified IT deliverables will be subject to a new validation by the CUSTOMER within 5 working days of their submission by SWEET PUNK. The lack of reservations, on the part of the Customer, at the end of the above-mentioned period, will lead to tacit validation of the IT Deliverables in question.
7.7 – Validation of communication services
The passage by SWEET PUNK from one stage of production to the next is subject to the validation by the CLIENT of the documents relating to the stage in progress. It is agreed between the Parties that any validation must be signed or sent by email to the relevant coordinator of the other Party. All validation exchanges between the Parties will be deemed accepted without response from the other Party within the period provided for in the implementation schedule. In the absence of precision in the implementation schedule, the CUSTOMER will have a period of 3 working days, except for a shorter period imposed by the nature of the service and compliance with the schedule, from the receipt of the elements to accept, refuse (specifying the reasons for this refusal) or suggest modifications, and this in writing (letter, fax or email). Beyond this deadline, the elements will be deemed accepted.
The CLIENT will organize its internal validation process for the proposals and documents constituting each service. The CLIENT retains editorial control over the media concerned.
ARTICLE 8 – FINANCIAL CONDITIONS
8.1 – Price of the Services
In return for the services provided by SWEET PUNK, the CUSTOMER will pay SWEET PUNK a remuneration corresponding, per service, to the price detailed in the estimate.
8.2 – Technical costs and costs
The technical costs and costs related to the Services will be invoiced after completion in accordance with the estimate.
In the case of a request from the CUSTOMER for exceptional costs or costs not provided for in the estimate, these will be the subject of an additional estimate presented to the CUSTOMER for prior acceptance.
Travel, accommodation and meal costs incurred by SWEET PUNK in connection with the implementation of the Contract will be invoiced to the CUSTOMER in euros and euros on presentation of supporting documents.
ARTICLE 9 – MODIFICATION, SUSPENSION OR TERMINATION OF CURRENT SERVICES
In the event that the CUSTOMER decides to cancel or interrupt a Service in progress, SWEET PUNK will indicate the deductions and refunds resulting from this change, without prejudice to the other rights of SWEET PUNK.
SWEET PUNK cannot in any case incur the slightest responsibility for cancellations decided by the CUSTOMER, it being here specified that the CUSTOMER will remain liable for the remuneration due to SWEET PUNK for the Services canceled or suspended.
In the event that the CUSTOMER wishes to interrupt an engaged production job, SWEET PUNK will do its best to stop and limit the costs and any damage incurred, but the CUSTOMER will be responsible for all commitments made in terms of work already carried out, or guarantees data.
The modification of Services validated by the CUSTOMER during execution can only take place on additional estimate accepted by the CUSTOMER, unless this modification can be made by SWEET PUNK without significant additional cost.
ARTICLE 10 – INTELLECTUAL PROPERTY AND OTHER RIGHTS
The Services include elements from SWEET PUNK’s own work (the “Agency Content”), content from third parties (the “Third Party Content”) and, where applicable, content provided by the CLIENT (the “Customer Content” ).
10.1 – SWEET PUNK copyright
In return for the payment of the agreed sums, SWEET PUNK assigns to the CUSTOMER, as and when the invoices relating to the rights concerned are paid (or, in the event of impossibility of identification, to the payment of the last invoice for the realization of the Agency Content concerned), the intellectual property rights of which it is the holder of the Agency Content retained by the CUSTOMER under the terms and reservations hereinafter agreed. The remuneration for the transfer of rights provided for in this article is included in the price agreed in the article “Financial Conditions”. SWEET PUNK assigns to the CUSTOMER on an exclusive basis, on a personal basis, for the duration of protection of intellectual property rights, for the whole world:
– The right to reproduce and edit in full or in extracts the Agency Content, temporarily or permanently, without limitation of the number of copies, in any format, by any means and / or process and in any digital, analog, optical medium or IT and only on the Internet from all satellite, telephone, digital, wire or wave networks of any kind allowing remote access to Agency Content via fixed or mobile equipment such as the Internet, extranet or mobile phone.
– The right to represent, in such number and in all publications as the CLIENT pleases, all or part of the Agency Content, in any form, on any medium, analog, optical or computer and only on the Internet and by any means and / or a method of electronic communication to the public, through digital networks, in both “closed” circuits (such as the Intranet) and open circuits (such as the Internet), or of telematic services or by any other electronic communication method, whatever the mode of reception and consultation, direct or indirect (such as by downloading), domestic or collective, and whatever the mode of access, restricted or free.
– The right to adapt the Agency Content only in order to meet technical constraints and / or legal requirements.
It is specified that said rights are only transferred for free use. This assignment relates to the object code only, excluding the source code, including the creative sources (PSD, INDESIGN, 3D, etc.).
SWEET PUNK retains all intellectual property rights which it has not expressly assigned to the CUSTOMER in application of the Contract.
The CUSTOMER undertakes to insert, according to custom, on any copy of the services the mention “SWEET PUNK”. It is prohibited to undermine the integrity of the works resulting from the work of SWEET PUNK.
It is expressly agreed that SWEET PUNK retains full and entire ownership of the know-how, methods, procedures and tools, in particular software and computer programs, which it implements for the purposes of performing its services.
10.2 – Rights of third parties
The assignment granted above does not cover the rights of third parties. These rights include in particular the rights of personality of which the natural persons represented on the Agency Content or Third Party Content are entitled as well as other intellectual property rights which third parties hold on said content.
These rights can be negotiated by SWEET PUNK in agreement with the CLIENT according to the needs expressed by the latter and then invoiced to the latter. The Parties already agree that the iconographic elements can only be used to illustrate the medium for which they were originally designed or acquired.
In the event that it is envisaged to proceed with other uses than those initially planned, the CUSTOMER will notify SWEET PUNK in advance, which will endeavor, at the request of the CUSTOMER and provided that the latter communicates to it all the relevant information, to negotiate with third parties concerned the rights necessary for these unintended uses.
The CUSTOMER guarantees SWEET PUNK against pecuniary and other consequences which would arise as a result of use by the CUSTOMER beyond the limits of the rights of use.
The use of tools published by third parties, in particular software packages, may prove necessary for the exploitation or adaptation of the services. SWEET PUNK only has a personal, non-transferable license for these tools. It is therefore the responsibility of the CUSTOMER to subscribe to the publishers concerned the necessary user licenses.
With regard to the elements governed by public licenses (open source), where applicable, it is understood that the terms of these licenses will apply without the possibility of intervention or dispute on the part of one of the Parties, in particular regarding the principles of contamination.
10.3 – Customer content
With regard to Customer Content – photography, text, logo, graphics, elements, data, software, video, etc. – supplied to SWEET PUNK by the CUSTOMER for the purpose of their integration into the services and the use thereof, the CUSTOMER hereby declare and guarantee that I hold all the necessary rights and authorizations, including in particular the copyrights and authorizations of the persons whose images are reproduced. It is recalled as necessary that the CUSTOMER engages its exclusive responsibility in the event of recourse by third parties in this regard.
10.4 – Guarantees
SWEET PUNK guarantees the CLIENT the operation of the Services against any disturbances, claims and evictions whatsoever subject to use in accordance with the agreed operating conditions. SWEETPUNK guarantees the originality of the Agency Content and ensures that it does not infringe the rights of third parties on French territory.
This warranty is subject to the fact that i) the CUSTOMER has notified the action concerned in writing without delay, ii) has fully cooperated with SWEET PUNK and iii) has left the defense and arguments to SWEET PUNK.
ARTICLE 11 – LIABILITY
The parties agree that the obligations of SWEET PUNK are obligations of means. Its responsibility can only be engaged in the event of an established fault. SWEET PUNK will under no circumstances be held liable for any indirect damage resulting from the performance of the Contract, such as commercial or financial loss, loss of customers, loss of brand image, loss of profit, loss of order, any commercial disorder , as well as any action emanating from third parties and which it will not be demonstrated that they are attributable to SWEET PUNK. The Parties expressly waive article 1222 Civil Code.
SWEET PUNK can not be held responsible for any decision taken by the CUSTOMER or by any third party designated by him, and having the effect of modifying the nature, object or volume of the Services defined in the Contract, despite the warning SWEET PUNK, informing the CLIENT beforehand of any risks. If an action should be maintained by the CUSTOMER despite the reservations expressed by SWEET PUNK, the CUSTOMER will be considered as having accepted the risks incurred and will have to assume alone all the consequences without recourse against SWEET PUNK.
In the event that SWEET PUNK’s liability is engaged, the total amount of damages to which it may be held, all damages combined, may not be greater than the lower amount between (i) 100,000 € or (ii) the amount collected for work and costs incurred by SWEET PUNK during the 6 months preceding the document instituting proceedings. Unless otherwise prescribed by law, any action by the Client under the Contract must take place no later than 12 months from the occurrence of the event giving rise to the action.
ARTICLE 12 – NON-SOLICITATION OF STAFF
The CUSTOMER undertakes not to hire or cause to work, in any manner whatsoever, the personnel and any person made available by SWEET PUNK, including, in particular, employees or corporate officers, subcontractors and freelancers , for the performance of the services, throughout the duration of this Contract and during the 24 (twenty-four) months after its termination for any reason whatsoever.
The CLIENT guarantees the application of this prohibition by the other companies of the Group to which it belongs. In the event of a breach of this prohibition, the CUSTOMER will be required to immediately pay SWEET PUNK, as a penalty clause, a lump sum compensation equal to 12 months of the last monthly remuneration of the person requested or hired, plus all costs of recruiting a replacement, without this compensation being less than 50,000 euros.
ARTICLE 13 – EARLY TERMINATION
In the event of failure by one of the Parties to any of its obligations, the non-defaulting Party, without prejudice to any other remedy or action it may exercise, may automatically terminate and without additional formality, the Contract at the end of a period of one month following the dispatch of a registered letter with acknowledgment of receipt which has no effect.
In the event of termination of the Contract, for any reason whatsoever, SWEET PUNK will provide the CLIENT on request with all of the documents and equipment belonging to it.
SWEET PUNK will be authorized to destroy unclaimed items six months after the end of the Contract.
The CUSTOMER may request SWEET PUNK as part of any Reversibility / Transferability Services.
ARTICLE 14 – CONFIDENTIALITY
By express agreement, the Parties undertake to keep the information they may have had during the negotiation and execution of the Contract strictly confidential and not to disclose it to anyone, without having obtained the prior written agreement of the other Party, except on the order of a Court or any competent authority.
In general, the Parties will take the same precautions to keep the confidential information of the other Party confidential, as that which they usually observe for their own confidential information.
Consequently, each Party undertakes to implement all the measures useful for preserving the confidentiality of the information, this information can only be transmitted to the employees of the Parties as well as to their subcontractor who, as a result of their function, would need to use this information, and taking care to warn them of the confidential nature of the latter.
It is agreed between the parties that SWEET PUNK may, including after the expiration of the Contract, report its collaboration with the CLIENT, incorporate the services provided for the latter into its internal and / or external communication tools and use these services within the framework of demonstrations, events or trade fairs. As such, the CUSTOMER grants SWEET PUNK a non-exclusive and strictly personal right to exploit the rights relating to these services exclusively for the purposes of its communication, as specified above, for the legal duration of protection of the rights of ‘author.
ARTICLE 15 – SUBCONTRACTING
SWEET PUNK may subcontract some of its obligations. SWEET PUNK will nevertheless remain responsible, with regard to the CLIENT, for the proper performance of the obligations by the third-party subcontractor. SWEET PUNK will take care of all remuneration due to each subcontractor without this overshooting the budget.
ARTICLE 16 – PERSONAL DATA
SWEET PUNK recognizes the importance of respecting privacy and the regulations relating to the protection of personal data (Law of January 6, 1978 “Information Technology and Liberties” and Regulation 2016/679 relating to the protection of individuals and with regard to the processing of their personal data and the free movement of such data).
Given the role of SWEET PUNK, the Parties have determined that SWEET PUNK acts as a processor, and the CLIENT as a controller. The Parties declare that they have taken into account all the factual elements and the applicable regulations (as in particular interpreted by the opinion 1/2010 of the Article 29 Group of February 16, 2010) to determine the positioning of each. As such and under the Contract between the Parties, the CUSTOMER and SWEET PUNK have, under current or future regulations, the rights and obligations referred to below.
Given the positioning of the Parties, it is the CLIENT’s responsibility to ensure compliance with the regulations and to provide any textual or operational element of compliance concerning it. SWEET PUNK is not a law firm and SWEET PUNK cannot be criticized for not providing legal advice.
1. Obligations of SWEET PUNK
SWEET PUNK’s obligations include only the following. SWEET PUNK thus guarantees the CLIENT against any claim or action by third parties in respect of its obligations and undertakes to bear, over time, all expenses, convictions, costs, lawyer fees that the CUSTOMER could bear because of these procedures.
Keeping a record of the Client’s instructions
SWEET PUNK undertakes to keep a written record of the Client’s specific instructions for personal data in an open format. This document includes all the mandatory information referred to in article 30 of Regulation 2016/679. As an exception to the above, the operations and processing brought about by the execution of these conditions are considered to constitute instructions from the CLIENT.
In general, SWEET PUNK will only use personal data in the context of these or on specific instructions from the CLIENT.
Use of subcontracting
SWEET PUNK can use any subcontracting for aspects of the contractual relationship not involving personal data. On the other hand, in the event of using a subcontractor for the processing of personal data relating to the execution of these conditions, SWEET PUNK will warn the CUSTOMER who cannot refuse his agreement, unless there is good reason. Any silence from the CUSTOMER of more than 15 days will be deemed tacit acceptance.
SWEET PUNK implements internal procedures to demonstrate compliance with the regulations as a subcontractor. As such and in a reasonable manner, SWEET PUNK accepts that the CUSTOMER may, with 15 days written notice, send to SWEET PUNK specific questions and requests for documentation relating to compliance with the “personal data” regulations. SWEET PUNK must respond within a reasonable time which cannot be more than 1 month. As an exception to the above, SWEET PUNK will be required to respond within the deadlines imposed by the authorities in the event of a control or request from the CNIL (or assimilated authority). SWEET PUNK undertakes to cooperate with the CLIENT in the event of a control procedure or request for documentation from the CNIL (or similar authority).
Privacy by design
SWEET PUNK implements the internal procedures allowing the demonstration of the respect of the principle of taking into account the principles of data protection from the design and data protection by default.
SWEET PUNK declares to have implemented a series of technical and organizational security measures aimed in particular at:
– guarantee the confidentiality, integrity, availability and resilience of information systems processing personal data, in accordance with the state of the art and herein;
– restore, if necessary, the availability of and access to personal data, in accordance with the state of the art and herein.
SWEET PUNK implements an annual procedure for testing, analyzing and evaluating existing technical and organizational security measures.
Storage of personal data provided by the CLIENT to SWEET PUNK
SWEET PUNK stores the personal data provided within the framework of these within the European Union.
SWEET PUNK will store the personal data provided by the Client in accordance with the retention periods determined by the latter. The CUSTOMER acknowledges that, in the absence of a written instruction, SWEET PUNK does not keep the data kept for more than 3 years from the termination of this agreement. The
CUSTOMER assumes all the consequences of this delay in the event of a lack of written instruction. After this period, SWEET PUNK destroys the data concerned.
SWEET PUNK undertakes not to mix the personal data provided by the Customer with the personal data of other customers.
Security breach procedure
Although SWEET PUNK is subject to an obligation of means in terms of IT security, SWEET PUNK undertakes, in the event of a security breach (1) to alert the CUSTOMER as soon as possible and provide him with the necessary but reasonable information (and in the limit of SWEET PUNK’s confidentiality obligations), (2) assist the CLIENT and, where applicable, the CNIL or any public authority in this context and (3) participate, in a reasonable manner, in the implementation of corrective measures. As such, SWEET PUNK will keep a history book of security incidents.
CLIENT assistance in the implementation of rights referred to in European Regulation 2016/679
SWEET PUNK undertakes to assist the CUSTOMER with any written and precise request relating to the exercise of a right or obligation covered by European Regulation 2016/679, and in particular:
– the implementation of the rights of the data subjects (for example, right to portability, right of access and rectification);
– participation in a privacy impact study.
The Parties recognize that if this assistance should exceed more than one hour per week, then SWEET PUNK would be legitimate to invoice the CUSTOMER for time overruns based on the hourly rate applicable on the day of the CUSTOMER’s request.
2. Obligations of the CLIENT
Declarations to the CNIL
The Customer declares and guarantees to have proceeded, before May 25, 2018, with all of the declarations and authorization requests necessary for the collection, processing, transfers and conservation of the personal data used or necessary for the execution of these terms.
Keeping a treatment register
The CUSTOMER undertakes to create, maintain and keep up to date a processing register comprising all of the compulsory information under Regulation 2016/679.
Information / consent of data subjects
The CUSTOMER declares and guarantees to have informed the persons concerned of all of their rights and the mandatory notices as referred to by the applicable regulations and to have obtained, where applicable, the consent in accordance with the applicable regulations.
The CUSTOMER declares to have implemented a series of technical and organizational security measures aimed in particular at:
– guarantee the confidentiality, integrity, availability and resilience of information systems processing personal data, in accordance with the state of the art and herein;
– restore, if necessary, the availability of and access to personal data, in accordance with the state of the art and herein.
The CUSTOMER implements an annual test, analysis and evaluation procedure for the technical and organizational security measures put in place.
Personal data retention periods
As the data controller, the CUSTOMER agrees and guarantees to determine, for each type of data and each purpose, a retention period in accordance with the regulations in force. The CUSTOMER undertakes to communicate to SWEET PUNK these retention periods in writing and without delay.
ARTICLE 17 – MISCELLANEOUS
This Contract does not confer on SWEET PUNK the capacity of agent, agent or representative of the CLIENT. The parties are not animated by any “affectio societatis” and this Contract cannot be interpreted as creating any de facto company, in any capacity whatsoever, between the Parties.
This Agreement represents the entire agreement of the Parties. It replaces any formal or informal agreement, any proposal or any contrary project, which may have existed on the same subject between the Parties before its signature.
ARTICLE 18 – APPLICABLE LAW – ATTRIBUTION OF JURISDICTION
This contract is subject to French law.
THE PARTIES AGREE TO SUBMIT ALL DISPUTES RELATING TO THE VALIDITY, INTERPRETATION, PERFORMANCE AND / OR TERMINATION OF THE CONTRACT, IF THEY CANNOT BE FRIENDLY RESOLVED BETWEEN THE PARTIES, TO THE EXCLUSIVE COMPETENCE OF THE COURTS OF PARIS.