GENERAL CONDITIONS OF PROVISION OF SERVICES
Applicable from 10.11.2020
ARTICLE 1 – DEFINITIONS
“The Client” means any natural or legal person, consumer or professional, governed by private or public law, who requests services from the Service Provider.
“The General Conditions” mean these General Conditions of Service.
“Consumer” means any natural person who acts for purposes that do not fall within the scope of his commercial, industrial, craft, liberal or agricultural activity.
“The Contract” means the contract concluded between the Service Provider and the Customer specifying the nature and extent of the Service.
The “Estimate” means the estimate sent by the Service Provider to the Customer before the signing of the Contract.
“Costs” means the costs incurred by the Service Provider to perform the Services, including in particular travel costs.
“The Parties” means the Client and the Service Provider.
“The Service Provider” means the company CARIBBEAN MARITIME CONSULTING & SERVICES (CMCS) SARL with a capital of 1000 Euros, whose registered office is at Blachon 97122 Baie Mahault, and registered with the POINTE A PITRE RCS under number 811484930
“The Service” or “The Services” means the mission (s) entrusted by the Client to the Service Provider and executed by the latter.
“Professional” means any natural or legal person, public or private, who acts for purposes falling within the scope of his commercial, industrial, craft, liberal or agricultural activity, including when acting in the name or on behalf of another professional.
“Subcontracting” means the operation by which the Service Provider entrusts the performance of all or part of the Service or Services entrusted by the Customer to another natural or legal person.
The “Subcontractor” means the natural or legal person to whom the Service Provider has subcontracted all or part of the Service or Services entrusted by the Customer.
ARTICLE 2 – APPLICATION OF GENERAL CONDITIONS
The Service Provider performs – and not exhaustively – expertise, advice and services, in the maritime and transport fields.
These General Conditions automatically govern any contractual relationship between the Service Provider and its Client and prevail over any other contractual document of the Client, in particular its general purchasing conditions.
The conclusion of the Contract – whatever the form – by the Customer constitutes acceptance by the latter, without any reservation or restriction, of these General Conditions. These General Conditions apply to any Service requested verbally, electronically or in writing from the Service Provider. The fact that the Service Provider does not implement one or the other clause established in its favor in these General Conditions cannot be interpreted as a waiver on its part to invoke it.
The Service Provider reserves the right to modify its General Conditions at any time.
ARTICLE 3 – CONCLUSION OF THE CONTRACT
Any request for a Service must be sent by the Customer to the Service Provider in writing in any form, in particular electronic, but it may also – in particular in an emergency – be sent orally in the terms described in these General Conditions.
Except in an emergency, the Service Provider sends the Customer a Quote specifying the nature and extent of the Services. The Contract will be concluded after acceptance of the Quote and, where applicable, signature of the Contract by the Service Provider and the Customer.
In an emergency, the nature and extent of the Service may be defined orally or any written medium, including by email. The Contract will be concluded after agreement of the Customer on the nature and extent of the Service communicated orally or in writing.
When the Service is entrusted orally by the Customer, it is up to the latter in the event of a dispute to prove the scope of the Service entrusted to the Service Provider when he considers that it is different from that mentioned on the Service Provider’s invoice and on any documents produced by him in execution of the Service.
If the Customer acts by delegation, he must specify the identity of the natural or legal person, under private or public law, who benefits from the Service or pays its price.
If the Client subcontracts to the Service Provider all or part of a mission entrusted to him, he must inform the Service Provider of all the information relating to the main market necessary for the proper performance of the Services, including the identity of the client. final and the economic and technical context in which the service entrusted is included.
ARTICLE 4- PRICE OF SERVICES
Except in an emergency, the price of the Services is defined according to the Quotation established by the Service Provider.
Unless otherwise stipulated in the Quotation, it will be valid for one month. When the validity period of the Estimate is greater than one month, the Service Provider reserves the right to modify the amount of the Estimate before the execution of the Contract when events which are external to it, and which have occurred after the issuance of the Estimate, are likely. to modify the nature, scope or amount of the Services.
Any Service carried out without a prior estimate will be invoiced on the basis of the time spent, at an hourly rate of 100 euros excluding VAT, in addition to payment of the Service Provider’s Fees and expenses.
Additional prices or payment of the Service Provider’s Costs may be requested by the Service Provider, after prior information to the Customer, depending on the progress of the file and / or requests for additional Services.
The price of the Services is denominated in euros and calculated exclusive of tax. It is increased by the VAT rate applicable on the day of performance of the Services. The price in foreign currency is purely indicative; only the price in euros is valid.
ARTICLE 5 – INVOICING AND PAYMENT TERMS
Unless otherwise agreed between the Service Provider and the Customer, the Service Provider will send the Customer, before the performance of the Service, an initial provision / down payment invoice to be applied to the total price of the Services.
Unless the Service Provider agrees, the latter will only start performing the Service after full payment of the provision invoice / deposit by the Customer.
During the performance of the Services, the Service Provider may send the Customer one or more invoice (s) for additional provision / down payment to be applied to the total price of the Services.
Once the Service has been performed, the Service Provider will send a final invoice to the Customer indicating the balance due after deduction of payments received for provisions / down payments.
Unless otherwise agreed by the Parties, payment for each invoice must be made within 30 days of its issue.
ARTICLE 6 – LATE PAYMENT
In the absence of payment of the initial provision / deposit invoice referred to in Article 5 of these General Conditions within 30 days of its issue, the Customer will be deemed to have waived the performance of the Service and the Service Provider will be released from its contractual obligations, without prejudice to any damages for which the Service Provider may claim compensation from the Customer.
In the absence of payment of the total amount of a provision / deposit invoice, other than the initial provision / deposit invoice referred to in article 5.1 of these General Conditions, within 30 days of its issue, the Service Provider reserves the right to suspend the performance of the Service until full payment of the provision invoice / deposit. When the Service Provider exercises this option to suspend the Service, he incurs no liability in this regard towards the Client, regardless of the damage alleged by the latter.
If payment terms are exceptionally granted by the Service Provider, the non-payment of a single installment will automatically lead to the forfeiture of the term and the balance will become immediately payable without the need for any act or formal notice.
In the event of late payment, even partial, the Customer will be liable for late payment penalties at the rate of 10% per year, without prejudice to any claims for damages by the Service Provider against the Customer. These penalties will be calculated on the amount including tax of the amount remaining due. Late payment penalties are payable without a reminder being necessary in accordance with article L.441-10-II of the French Commercial Code. If the Client is a Professional, a flat-rate indemnity of 40 Euros for recovery costs will also be applied, by invoice, in the event of late payment in accordance with articles L.441-10-II and D.441-5 of the French Commercial Code. . If the amount of recovery costs incurred is greater than the amount of this fixed compensation, the Service Provider may request additional compensation.
Any disputes between the Customer and the Service Provider cannot exempt from payment of the Service Provider’s invoice or invoices nor from the payment of any late payment penalties and recovery compensation.
ARTICLE 7 – CLIENT’S OBLIGATIONS
It is the Customer’s responsibility to provide all the documents, information, contacts and access necessary for the performance of the Service.
The Customer is responsible for – and guarantees the Service Provider against – all consequences arising in particular from incorrect or insufficient information and / or documents, whether they emanate from the Customer or a third party, and / or from the transmission of false documents or inapplicable.
The Services provided by the Service Provider are intended for the exclusive use of the Customer and for the use defined in advance. The Service Provider cannot assume any responsibility for requests and / or claims made under the Services by any third party to the Contract.
The Customer remains solely responsible for the operation or implementation of any recommendations contained in the Service. The Service Provider is not liable for any prejudice, whatever they may be, which could result from improper use or implementation of the Service by the Customer or by a third party to the Contract.
ARTICLE 8 – SCOPE OF SERVICES
The Service is limited to that defined in the Quote and / or the Contract.
The Service provided is based solely on the documents submitted to the Service Provider and / or on the material elements possibly inspected by the Service Provider in their state at the time of the inspection.
The Services do not include the performance of work (dismantling, overhauls, reassembly, etc.) which remain the responsibility of the owner of the equipment and / or the Customer.
Unless otherwise stipulated, the Services do not include receipt or acceptance of work or equipment without the prior agreement of the Service Provider.
Unless otherwise stipulated, the Services do not include maneuvering or equipment operation actions. These actions remain the responsibility of the equipment operator and / or the Customer.
The Service Provider cannot be held responsible for any failure of the equipment to comply with the regulations, standards or normal conditions of use in force.
ARTICLE 9 – INSURANCE
The Service Provider undertakes to maintain Civil Liability insurance coverage for the entire duration of the Services with European insurance companies, the maximum amounts of which will not be less than € 500,000.
ARTICLE 10 – SUBCONTRACTING
The Service Provider reserves the right to resort to subcontracting for the performance of the Services.
The Customer undertakes to accept, under the conditions provided for by article 14 of law n ° 75-1334 of December 31, 1975 relating to subcontracting, any delegation for the benefit of the Subcontractor.
The acceptance by the Client, whatever the form, of any Quotation, any contract or document in which appears a delegation from the Subcontractor implies the Client’s consent to it.
ARTICLE 11 – FORCE MAJEURE
In the event of non-performance of one of its obligations provided for in these General Conditions and / or in the Contract, the Service Provider will not be considered as defaulting or liable for compensation, if the performance of the obligation has been made impossible by a event beyond the control of the Service Provider, which could not be reasonably foreseen when the contract was concluded and the effects of which could not be avoided by appropriate measures.
Constitute events of force majeure within the meaning of the Contract, the impossibility of access to the place of performance of the Services and / or the offices of the Service Provider, strikes by personnel foreign to the Service Providers, difficulties in supplying the materials necessary for the performance of the Services, major disruptions to the transport of logistics and / or telecommunications, acts of terrorism, exceptional stoppages of banking transactions, armed conflicts, state restrictions, insurgencies, riots, explosions, tsunamis, epidemics or quarantines, floods, meteorological phenomena , failure or interruption of public services, fuel shortage, as well as any other event meeting the legal definition of force majeure within the meaning of article 1218 of the Civil Code.
If the impediment is temporary, performance of the obligation will be suspended unless the resulting delay justifies termination of the contract. If the impediment is final, the contract is automatically terminated and the parties are released from their obligations under the conditions provided for in articles 1351 and 1351-1 of the Civil Code.
ARTICLE 12 – TERMINATION
The Service Provider reserves the right to terminate the Contract in the event of non-payment of one or more invoices within the time limits provided for in Article 5 of these General Conditions or mentioned in the invoice (s).
The Contract will be terminated automatically 15 days after the first presentation to the Customer of a formal notice to settle unpaid invoices sent by registered letter with acknowledgment of receipt. The Service Provider will then be released from all responsibility with regard to the file to be processed and his assignment will end immediately.
The termination may give rise to the right to compensation for damages for the benefit of the Service Provider.
The Service Provider may issue an invoice corresponding to the price of the Services already performed as well as the amount of the costs already incurred for the performance of the Services not yet performed.
ARTICLE 13 – LIMITATION OF LIABILITY
The Service Provider is subject to an obligation of simple means.
Without prejudice to any other cause for exemption from legal, regulatory or contractual liability, the Service Provider does not incur any liability for any reason whatsoever in the event that the non-performance of the Contract arises from:
– a case of force majeure as defined in article 11 of these General Conditions, and / or
– failure by the Customer to provide the Service Provider with the information and / or documents necessary for the performance of its Service, and / or
– a fault or a faulty instruction of the Customer.
The contractual liability of the Service Provider, whatever the cause or the basis, cannot – in any event – exceed twice the price of the Service and is limited in any event to a maximum liability limit of 150,000. euros.
The Service Provider may not be required to compensate any intangible damage that may be suffered as a result of the performance or non-performance of the Services, any loss of profit, operating loss, loss of reputation, loss of opportunity or any other loss in respect of non-material damage, as well as any loss resulting from indirect damage, whether material or immaterial.
ARTICLE 14 – COMPLAINTS
Any claim against the Service Provider must be made within two months from the conclusion of the Contract in the event of non-performance of the Service or 15 days from the end of the Service provided by the latter, and this hardly of foreclosure.
To be valid, complaints against the Service Provider must be notified to the latter by any means (mail, email, etc.) and must be immediately confirmed by registered letter with acknowledgment of receipt.
ARTICLE 15 – FORCLUSION – PRESCRIPTION
Any action by the Client against the Service Provider must be preceded by a written complaint which must be notified in accordance with article 14 of these General Conditions, on pain of foreclosure.
Unless there are shorter special legal requirements, actions against the Service Provider are time-barred one year from the end of the Service or from the termination of the Contract in application of article 12 of these General Conditions.
All actions by the Service Provider in settling his invoices are prescribed by five years from the date of payment of the invoice, or failing that, from the end of the Service.
ARTICLE 16 – SEVERABILITY
Each provision of these General Conditions is severable from the others. If any provision should be considered invalid, unenforceable or illegal under any existing or future law, by a state jurisdiction or by a competent arbitral tribunal, or by the operation of any applicable law, this invalidity, inapplicability or illegality would not affect the other provisions of the contract which would be valid, applicable and legal. In such a case, the Service Provider undertakes to replace, if possible, the illegal or inapplicable provision by a legal provision of the same spirit and purpose.
ARTICLE 17 – PROTECTION OF PERSONAL DATA
The Customer is informed that the Service Provider implements the processing of personal data in order to enable him to ensure the management, invoicing, follow-up of files and prospecting. These data are necessary for the proper management of customers and are intended for the authorized services of the Service Provider. The Service Provider only keeps the data for the time necessary for the operations for which they were collected as well as in compliance with the regulations in force. In this regard, the Customer’s data is kept for the duration of the contractual relationship plus 3 years for the purposes of animation and prospecting, without prejudice to retention obligations or limitation periods. In terms of accounting, they are kept for 10 years from the end of the accounting year. The data processed are intended for authorized persons of the Service Provider. Under the conditions defined by the Data Protection Act and the European data protection regulations, Customers who are natural persons have the right to access data concerning them, rectification, interrogation, limitation, portability, erasure. The persons concerned by the processing implemented also have the right to oppose at any time, for reasons relating to their particular situation, to the processing of personal data having as a legal basis the legitimate interest of the Service Provider. , as well as a right of opposition to commercial prospecting. They also have the right to define general and specific directives defining the way in which they intend to exercise, after their death, the rights mentioned above by e-mail to the following address: cmcs.guadeloupe@gmail.com, or by post to the following address: CMCS, Blachon 97122 Baie Mahault, accompanied by a copy of a signed identity document. Data subjects have the right to lodge a complaint with the CNIL.
ARTICLE 18 – APPLICABLE LAW – REGULATIONS
DISPUTES
THE PRESENT GENERAL CONDITIONS AND THE SERVICES ARE GOVERNED BY FRENCH LAW.
ANY LEGAL ACTION AGAINST THE SERVICE PROVIDER SHALL BE PRECEDED BY AN ATTEMPT OF PRIOR CONCILIATION.
IF THE CUSTOMER IS A PROFESSIONAL, ANY LITIGATION OF ANY NATURE WHICH MAY ARISE BETWEEN THE SERVICE PROVIDER AND THE CUSTOMER WILL BE SUBMITTED TO THE POINTE A PITRE COMMERCIAL COURT, EVEN IN CASE OF PLURALITY OF DEFENDANTS, WARRANTY CALL OR REQUEST INCIDENCE BY NATIONALS OR FOREIGNERS, INCLUDING EMERGENCY, PROVISIONAL, REFERENCE OR REQUEST MEASURES.
IF THE CUSTOMER IS A CONSUMER, THE CUSTOMER HAS THE POSSIBILITY TO USE A CONSUMER MEDIATOR FREE OF CHARGE IN THE EVENT OF A DISPUTE WITH THE SERVICE PROVIDER, IN ACCORDANCE WITH ARTICLE L.612-1 OF THE CONSUMER CODE:
THE MEDIATION AND ARBITRATION CENTER OF THE PARIS CHAMBER OF COMMERCE AND INDUSTRY
(CMAP)
39, AVENUE FRANKLIN ROOSEVELT – 75008 PARIS
TEL: 01 44 95 11 40 / FAX: 01 44 95 11 49 / MAIL: cmap@cmap.fr
WEBSITE: WWW.CMAP.FR
IN ACCORDANCE WITH ARTICLE L.612-2-1 ° OF THE CONSUMER CODE, THE CUSTOMER MAY REFER TO THE MEDIATOR ONLY IF THEY HAS PRIORLY ATTEMPTED TO RESOLVE THE DISPUTE WITH THE SERVICE PROVIDER DIRECTLY WITH THEM BY THE MEDIATOR. SENDING HIM A COMPLAINT BY REGISTERED MAIL WITH ACKNOWLEDGMENT OF RECEIPT.
PURSUANT TO ARTICLE L.612-2-4 ° OF THE CONSUMER CODE, THE MEDIATOR WILL NOT BE ABLE TO EXAMINE THE CUSTOMER’S REQUEST IF IT HAS BEEN SUBMITTED MORE THAN ONE YEAR AFTER SENDING BY THE CUSTOMER OF ITS CLAIM TO THE SERVICE PROVIDER.