French version here
1. Definitions
"AUDION": refers to AUDION, a French company par actions simplifiée with capital of 7694 euros, registered with the Paris Trade and Companies Register under number 834 462 061, and whose registered office is located at 85 rue Jouffroy d'Abbans, 75017 Paris.
"Advertising": refers to any announcement by the Customer, regardless of the format, comprising, in particular, a commercial name, a text presenting the Customer's company or activity, a clickable URL link and intended to promote the Customer's brand(s) and/or the supply of good(s) or service(s).
"Customer": refers to the advertiser acting directly or through an agent (advertising agency, advertising space buying centre) to whom the advertiser has entrusted the purchase of space and who entrusts AUDION with the provision of services.
"Confidential Information" means the information and/or data, taken together or separately, of any nature whatsoever, including technical, financial, commercial, strategic, accounting and social (each of these terms being taken in their broadest sense) communicated by AUDION to the Service Provider (a) in written, graphic, machine-readable or any other tangible form or (b) orally or visually.
"Contract": refers to all the contractual documents consisting of these general terms and conditions and any appendices thereto and the related Order Form.
"Deliverable" means an item delivered by the Service Provider to AUDION as part of the Services.
"Intellectual Property Rights" refers to all intellectual property rights, and in particular copyrights, rights relating to computer software, patents, patented and unpatented inventions, designs and models, trademarks, know-how, trade secrets, database rights, domain names, as well as all applications and registrations relating to the above, throughout the world.
"Order Form": means the order form issued by AUDION to order Services from the Service Provider.
"Parties": refers to AUDION and the Service Provider.
"Services": means all services provided by the Service Provider on behalf of AUDION under the Contract.
"Service Provider": means the podcaster or production company with which AUDION contracts to perform the Services.
2. Contract
The contractual relationship between the Parties consists of the following contractual documents set out in interpretative descending order of priority:
- the Terms and condition of purchase; and
- the Order Form.
The Service Provider expressly accepts all these documents, which constitute an indissociable whole binding the Parties. In the event of any contradiction between these documents, the provisions of these Terms and condition of purchase shall prevail.
3. Services
If AUDION orders the Services, they are defined in the Order Form.
Deliverables created by the Service Provider specifically for AUDION in execution of the Services, such as content, are also identified in the Order Form.
In return for payment of the price mentioned in the Order Form, the Service Provider may provide AUDION with one or more of the following Services:
- the creation of audio and video content and social network display formats for advertising purposes;
- host-read creation (advertising in the host's voice) for integration into the podcast;
- the creation of a tailor-made episode for the Customer in line with the podcast's editorial line in order to relay the advertising message and embody the communication (‘co-branding’);
- the creation of branded podcasts.
These Services give rise to one or more Deliverables that must be delivered within the deadlines set out in the Order Form and taking into account the first broadcast date of the Advertising agreed between AUDION and the Customer.
4. The Service Provider's mission
The Service Provider undertakes to perform the Services in accordance with the description of the Services set out in the Order Form:
- design and produce the Deliverables in accordance with best practice;
- provide AUDION with all documentation in a reusable format; and
- provide AUDION with all services, functions and tasks which are not described in detail in the Contract, but which are inherent to or reasonably related to and necessary for the proper performance and delivery of the Services in a quality approach.
The performance of the Services gives rise to the production of Deliverables to be validated by AUDION in accordance with the procedure described in the "Acceptance" Article.
The Service Provider undertakes to respect the deadlines defined in the Order Form for the production of the Deliverables (the "Schedule").
Failure by the Service Provider to comply with the Schedule and deadlines associated with the delivery phases of the Deliverables shall automatically result, without prejudice to any other remedy available to AUDION, in the application of the system of non-dischargeable penalties which shall be payable by the Service Provider in accordance with the mechanism provided for in the "Penalties" Article.
Any delay attributable to AUDION or to a third party not under the responsibility of the Service Provider may extend the time required to complete the Services, subject to the prior written agreement of the Parties. In this case, the Parties will consult each other to examine the consequences of this delay.
In the event of a delay due to AUDION, the Service Provider shall inform AUDION of the consequences of the delay on the Schedule and shall endeavour to minimise the consequences, without prejudice to compensation for any loss suffered by the Service Provider as a result of this delay.
5. Obligations of the Service Provider
In particular, the Service Provider undertakes to design and provide Services in accordance with the specifications detailed by AUDION in the Order Form and in accordance with the Contract, within the agreed deadlines and on the basis of the agreed price and with a view to the exploitation of the Advertising by the Customer.
For the Services for which it is responsible, the Service Provider freely determines, under its sole responsibility and its sole control, the logistical, IT and human resources necessary for the performance of the Services.
At AUDION's request, the Service Provider undertakes to provide AUDION with the documentation as well as any element useful and necessary for the use, production and modification of the Deliverables.
The Service Provider expressly undertakes to provide the Services in accordance with the description of the Services contained in the Order Form and the Schedule agreed between the Parties with all the diligence and professionalism required for their proper performance and in compliance with the Contract and good practice.
The Service Provider undertakes to cooperate and collaborate with AUDION.
The Service Provider undertakes, in a proactive approach and according to the planned objectives, to advise, alert, provide any recommendation, propose any improvement and keep AUDION informed.
6. Acceptance of Deliverables
The Service Provider shall submit to AUDION the Deliverables created for the purpose of validating the compliance of the Deliverables with the specifications defined in the Order Form. Upon delivery of each Deliverable by the Service Provider, AUDION shall have a verification period of fifteen (15) days to examine the Deliverables and notify the Service Provider of its decision (i) to accept the Deliverables, (ii) to express reservations or (iii) to reject them.
AUDION's acceptance of Deliverables cannot be tacit.
AUDION undertakes to justify any reservation or refusal in order to allow the Service Provider to modify the relevant Deliverable accordingly.
In the event of reservations or refusals, the Service Provider shall endeavour to modify the Deliverable concerned in order to make it compliant with the specifications defined in the Order Form. Once the modified Deliverable has been delivered to AUDION, the Deliverable acceptance procedure described above will once again apply.
If it is impossible for the Service Provider to achieve the required compliance of the Deliverables with the specifications defined in the Order Form within a reasonable period of time, the Service Provider shall notify AUDION. Within five (5) days of AUDION's receipt of such notification, the Parties shall meet to define an action plan to remedy the situation.
7. Financial provisions
The price of the Services is set out in the Order Form. Unless otherwise stipulated, it is expressed in euros exclusive of tax. Where applicable, value added tax (VAT) will be added to the sums due and will be payable by AUDION.
The terms of payment for the price of the Services are set out in the Order Form.
Payment may be made after an invoice has been sent by the Service Provider at the end of the campaign.
In the event of late payment, the Service Provider may charge default interest on the amounts still due. Late payment interest will be calculated from the day following the due date for payment until the date on which the Service Provider's account is credited. The late payment interest rate is set at three (3) times the legal interest rate applicable in France, increased by the recovery indemnity set at forty (40) euros by decree or its updated amount if applicable, in accordance with the provisions of Article L. 441-10 of the French Commercial Code.
It is expressly agreed that in the event of late payment, the Service Provider may not suspend performance of the Services.
8. Penalties
In the event of non-compliance with the deadlines attributable to the Service Provider, the following penalties shall apply ipso jure: one hundred (100) euros per period of twenty-four (24) working hour(s) of delay.
Penalties due under the terms of the Contract are not in full discharge of AUDION's obligations and are without prejudice to any other remedy available to AUDION under the terms of the Contract. If penalties are thus applicable, AUDION may invoice them to the Service Provider. In the absence of future invoicing, the Service Provider shall pay the penalties within a maximum period of forty-five (45) days end of month after invoicing by AUDION.
9. Intellectual Property
9.1. Pre-existing elements
AUDION grants the Service Provider, within the limits of the rights that it owns, a non-exclusive right to use the pre-existing elements that it may provide to the Service Provider for needs that are exclusively necessary for the Service Provider to fulfil its obligations within the context and for the duration of the Contract.
9.2. Extent of assignment of Intellectual Property Rights
The Service Provider assigns to AUDION, on an exclusive basis, as and when they are completed, the Intellectual Property Rights that it owns attached to the Deliverables and to all the components of the Deliverables taken together or separately.
The Intellectual Property Rights assigned include in particular:
- the non-exclusive right to reproduce, to authorise the reproduction or to have reproduced by any person of AUDION's choice, to duplicate, to print, to record the Deliverables by any process, without limitation of the number of copies or reproductions, permanently or temporarily, by any means, on any media and in any formats, known at the date of signature of the Contract or to come;
- the non-exclusive right to modify or have modified, arrange, adapt, transform or translate all or part of the Deliverables;
- the non-exclusive right to publish, disseminate, distribute, communicate, make available, share, edit, republish and lend all or part of the Deliverables, whether in return for payment or free of charge;
- the exclusive right to represent all or part of the Deliverables by any means using any process known or unknown at the date of signature of the Contract;
- the exclusive right to load, display, execute, transmit, store, decompile and disassemble all or part of the Deliverables, to correct errors and to reverse engineer all or part of the Deliverables for the purpose of exploiting the Advertising;
- the exclusive right to file all or part of the Deliverables for registration of any type of Intellectual Property Rights including any patent, trademark, design, copyright or other applications with the competent authorities worldwide.
The present transfer does not imply any obligation for AUDION and/or its Customer to exploit the Deliverables in any way whatsoever.
This assignment also includes the right for AUDION to assign or grant to third parties and in particular to its Customers, by way of licence or assignment, all Intellectual Property Rights on the Deliverables and to provide all authorisations that the Customer may deem necessary for the exploitation of the Deliverables and the rights on the Deliverables for the purposes of using the Advertising.
The Service Provider undertakes to sign all documents and to take all additional actions requested by AUDION or its Customer that may be required in order to give full effect to this assignment.
With regard to its moral rights, the Service Provider acknowledges that the very nature of the Deliverables requires interactivity and upgradability, as the Deliverables cannot be conceived as intangible and fixed. The Service Provider declares that it is fully aware of this and will not oppose any modifications or developments that the Customer or AUDION may make to the Deliverables, either directly or through any third party of its choice.
9.3.Territory of assignment of Intellectual Property Rights
The assignment of Intellectual Property Rights on the Deliverables is granted by the Service Provider to AUDION for the whole world.
9.4. Duration of the assignment of Intellectual Property Rights
The assignment of the Intellectual Property Rights in the Deliverables is made for the legal term of protection of the Intellectual Property Rights in each of the Deliverables plus any extension or prolongation.
9.5. Propriété ou usage des données
AUDIOIN's delivery to the Service Provider of any documents, files or data entails the transfer to the Service Provider of only those rights necessary for the performance of its obligations under the Contract and does not affect AUDION's or the Customer's Intellectual Property Rights in these elements.
AUDION or its Customer retains all rights to the documents, files and data belonging to it. The reproduction or any other use by the Service Provider of the documents, files or data entrusted by AUDION to the Service Provider for purposes other than the performance of the Contract is prohibited without the prior written consent of AUDION.
As part of its Services, the Service Provider undertakes to take all appropriate measures to prevent the loss or destruction of these documents, files or data, which remain subject to the confidentiality obligations stipulated in the Contract.
If AUDION so requests, the Service Provider undertakes to return to AUDION all documents, files or data entrusted by AUDION to the Service Provider, and in particular all functional, graphic, economic, commercial and strategic elements, and not to retain any copy thereof, subject to elements that it may have to retain in order to comply with legal and regulatory provisions.
The Service Provider is responsible for ensuring that its employees and any subcontractors comply with the obligations set out in this Article.
10. Warranties
The Service Provider warrants that in producing the Deliverables it will not infringe any third party rights and in particular any Intellectual Property Rights. The Service Provider warrants AUDION against any recourse, claims and/or condemnations or other consequences that may result from the action of a third party as a result of the Services.
The Service Provider warrants to comply with the law and regulations applicable to the Contract when performing the Services.
11. Personal Data
The Parties undertake to comply with their obligations under any regulations relating to the protection of personal data, and in particular Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016
12. Duration
The Contract will take effect from the date of signature of the Order Form by the last of the two Parties for the term specified in the Order Form. The term stipulated in the Order Form is firm except in the event of termination in the cases set out below.
13. Termination
13.1. Termination for breach
In the event of a serious or repeated breach by one of the Parties of its obligations under the Contract, after having sent to the defaulting Party, by registered letter with acknowledgement of receipt, a formal notice to cease the breach which has remained unsuccessful within a period of thirty (30) calendar days, the Party suffering the breach may immediately and automatically terminate the Contract without any legal formalities and without prejudice to any other rights and remedies it may have.
13.2. Termination for convenience
In view of the nature of the Services and in particular in view of the fact that AUDION is acting on behalf of a third party Customer, it is expressly agreed between the Parties that AUDION shall have the right to terminate the Contract automatically and by operation of law for convenience, by registered letter with acknowledgement of receipt sent to the Service Provider with a minimum notice period of thirty (30) calendar days, without giving any reason.
In this event, AUDION may, depending on the circumstances and terms to be agreed between the Parties, paying a termination indemnity.
The Parties agree that termination for convenience is unilateral. Consequently, the Service Provider does not have the option of terminating the Contract for convenience and is obliged, except in the event of force majeure or a particularly serious and repeated breach on the part of AUDION, to perform the Services. Failing this, in addition to any damages that AUDION may be entitled to claim, the Service Provider will automatically be required to pay a penalty equivalent to 60% of the total amount of the Contract.
14. Confidentiality
14.1. Obligations
The Parties undertake to treat as strictly confidential all Confidential Information transmitted in connection with the conclusion and performance of the Contract.
The Parties undertake to take all measures to ensure compliance with this obligation of confidentiality and shall refrain from disclosing to any natural or legal person, either directly or indirectly, the Confidential Information and/or reproducing it and/or using it, either on their own behalf or on behalf of third parties, for purposes other than the performance of the Contract. The Parties undertake not to disclose such Confidential Information to third parties, except with the prior written consent of the other Party and provided that such third parties have undertaken in writing to maintain the confidentiality of such Confidential Information in the manner provided for in the Contract. In any event, such disclosure shall be limited to what is essential for the third party to know in order to carry out the tasks entrusted to it. The Parties undertake that the Confidential Information will not be used or exploited, in whole or in part, directly or indirectly, in any context other than the performance of the Contract.
This obligation does not apply to any information which:
- is already publicly known ;
- falls into the public domain other than through an act or omission of the Service Provider;
- was already in the possession of the other Party at the time of its communication and is not already covered by an obligation of confidentiality; or
- is obtained from a third party by the other Party without breach of that third party's confidentiality obligations.
14.2. Duration of confidentiality
The obligations under this Clause relating to the use of Confidential Information shall survive the termination of the Contract, however caused, and shall continue to apply for a period of five (5) years.
At the term of the Contract, the Service Provider undertakes, at AUDION's request, to destroy or return as soon as possible all Confidential Information communicated to it within the framework of the Contract, and may only keep a copy of such information in its confidential files for regulatory or mandatory archiving reasons duly justified to AUDION and in good security and confidentiality conditions.
15. Liability
AUDION and the Service Provider, taking into account their reciprocal commitments and obligations, declare that the prices of the Services reflect the distribution of risks that they wish to share between them and agree that their total maximum liability is limited to the amount excluding taxes paid by AUDION under the Order Form during the twelve (12) month period preceding the event engaging the liability of the Party in question.
The Parties' liability is limited to direct damages only and shall in no event be incurred for any indirect damages, loss of income, loss of profit, operating losses or the cost of interrupting production.`
16. Subcontracting
The Service Provider may not subcontract its rights and obligations under the Contract without the express, prior and written agreement of AUDION and subject to prior approval of its subcontractors by AUDION, in accordance with the provisions of the law of 31st December 1975 relating to subcontracting. In any event, the Service Provider remains jointly and severally liable for the performance of the Services entrusted to any subcontractor, as if it had performed them itself.
In the event that the Service Provider subcontracts all or part of its Services, without AUDION's express prior written consent, AUDION shall have the right to terminate the Contract, under the conditions of the Article "Termination for default", without prejudice to its other rights and remedies.
17. Final provisions
17.1. Nature of Relationship
The Parties are acting as independent co-contractors, and no provision of the Contract shall, under any circumstances whatsoever, be interpreted as conferring on one of the Parties the status of agent, commission agent, distributor, representative or principal of the other Party.
Neither of the Parties undertakes, under the terms of the Contract or in any other capacity, to assume any obligation, regulatory or contractual, incumbent on the other Party, or to interfere in the conduct of the business of the other Party.
The Service Provider remains free to organise itself as it wishes in order to perform the Services referred to in the Contract.
None of the stipulations of the Contract and no action taken by any of the Parties in application of the Contract shall be deemed to constitute a partnership, subordination, association or joint venture between the Parties.
17.2 Force majeure
In the event of a force majeure event, as defined by Article 1218 of the French Civil Code, the Party affected by such an event shall notify the other Party as soon as possible of the nature of the force majeure event and its impact on the Contract.
Neither Party shall be deemed to have failed to perform its obligations under the Contract or shall otherwise be liable to the other Party because of a delay in the performance or non-performance of any of its obligations under the Contract, provided that such delay or non-performance is due to a force majeure event of which it has informed the other Party. The Party affected by a force majeure event shall use its best efforts to remedy the situation.
17.3. Entirety
This Contract constitutes the entire agreement between the Parties with respect to its subject matter. It supersedes all prior documents and agreements between the Parties. This Contract shall prevail over (i) any terms and conditions of sale of the Service Provider, or (ii) other provisions contained in documents issued by the Service Provider, not expressly accepted by AUDION.
17.4. Assignment
The rights and obligations of each of the Parties under the Contract may not be assigned, delegated, subcontracted or transferred in any way whatsoever without the prior written consent of the other Party.
17.5. Waiver
No forbearance or delay by either Party in enforcing its respective rights will prejudice or restrict the rights of that Party and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach. A waiver shall be effective only if it is expressed in writing and signed by a duly authorized representative of the Party giving the waiver.
17.6. Severability
If one or more provisions of this Contract are held to be invalid or declared as such pursuant to a law, a regulation or following a final decision of a competent court, the other provisions will remain in force, it being specified that the Parties may, by mutual agreement, agree to replace the invalidated provisions.
17.7. Modifications
AUDION reserves the right to modify the General Terms and Conditions at any time. Any new version of the said Terms and Conditions will be available on audion.fr and will apply immediately to the Service Provider.
17.8. Governing Law and Jurisdiction.
The Contract is governed by French law (excluding its conflict of laws rules). Any dispute relating to the validity, interpretation or performance of the Contract shall be subject to the exclusive jurisdiction of the competent courts of Paris (notwithstanding multiple defendants or third party proceedings), to which exclusive jurisdiction both Parties hereby expressly submit.
1. Definitions
"AUDION": refers to AUDION, a French company par actions simplifiée with capital of 7694 euros, registered with the Paris Trade and Companies Register under number 834 462 061, and whose registered office is located at 85 rue Jouffroy d'Abbans, 75017 Paris.
"Advertising": refers to any announcement by the Customer, regardless of the format, comprising, in particular, a commercial name, a text presenting the Customer's company or activity, a clickable URL link and intended to promote the Customer's brand(s) and/or the supply of good(s) or service(s).
"Customer": refers to the advertiser acting directly or through an agent (advertising agency, advertising space buying centre) to whom the advertiser has entrusted the purchase of space and who entrusts AUDION with the provision of services.
"Confidential Information" means the information and/or data, taken together or separately, of any nature whatsoever, including technical, financial, commercial, strategic, accounting and social (each of these terms being taken in their broadest sense) communicated by AUDION to the Service Provider (a) in written, graphic, machine-readable or any other tangible form or (b) orally or visually.
"Contract": refers to all the contractual documents consisting of these general terms and conditions and any appendices thereto and the related Order Form.
"Deliverable" means an item delivered by the Service Provider to AUDION as part of the Services.
"Intellectual Property Rights" refers to all intellectual property rights, and in particular copyrights, rights relating to computer software, patents, patented and unpatented inventions, designs and models, trademarks, know-how, trade secrets, database rights, domain names, as well as all applications and registrations relating to the above, throughout the world.
"Order Form": means the order form issued by AUDION to order Services from the Service Provider.
"Parties": refers to AUDION and the Service Provider.
"Services": means all services provided by the Service Provider on behalf of AUDION under the Contract.
"Service Provider": means the podcaster or production company with which AUDION contracts to perform the Services.
2. Contract
The contractual relationship between the Parties consists of the following contractual documents set out in interpretative descending order of priority:
- the Terms and condition of purchase; and
- the Order Form.
The Service Provider expressly accepts all these documents, which constitute an indissociable whole binding the Parties. In the event of any contradiction between these documents, the provisions of these Terms and condition of purchase shall prevail.
3. Services
If AUDION orders the Services, they are defined in the Order Form.
Deliverables created by the Service Provider specifically for AUDION in execution of the Services, such as content, are also identified in the Order Form.
In return for payment of the price mentioned in the Order Form, the Service Provider may provide AUDION with one or more of the following Services:
- the creation of audio and video content and social network display formats for advertising purposes;
- host-read creation (advertising in the host's voice) for integration into the podcast;
- the creation of a tailor-made episode for the Customer in line with the podcast's editorial line in order to relay the advertising message and embody the communication (‘co-branding’);
- the creation of branded podcasts.
These Services give rise to one or more Deliverables that must be delivered within the deadlines set out in the Order Form and taking into account the first broadcast date of the Advertising agreed between AUDION and the Customer.
4. The Service Provider's mission
The Service Provider undertakes to perform the Services in accordance with the description of the Services set out in the Order Form:
- design and produce the Deliverables in accordance with best practice;
- provide AUDION with all documentation in a reusable format; and
- provide AUDION with all services, functions and tasks which are not described in detail in the Contract, but which are inherent to or reasonably related to and necessary for the proper performance and delivery of the Services in a quality approach.
The performance of the Services gives rise to the production of Deliverables to be validated by AUDION in accordance with the procedure described in the "Acceptance" Article.
The Service Provider undertakes to respect the deadlines defined in the Order Form for the production of the Deliverables (the "Schedule").
Failure by the Service Provider to comply with the Schedule and deadlines associated with the delivery phases of the Deliverables shall automatically result, without prejudice to any other remedy available to AUDION, in the application of the system of non-dischargeable penalties which shall be payable by the Service Provider in accordance with the mechanism provided for in the "Penalties" Article.
Any delay attributable to AUDION or to a third party not under the responsibility of the Service Provider may extend the time required to complete the Services, subject to the prior written agreement of the Parties. In this case, the Parties will consult each other to examine the consequences of this delay.
In the event of a delay due to AUDION, the Service Provider shall inform AUDION of the consequences of the delay on the Schedule and shall endeavour to minimise the consequences, without prejudice to compensation for any loss suffered by the Service Provider as a result of this delay.
5. Obligations of the Service Provider
In particular, the Service Provider undertakes to design and provide Services in accordance with the specifications detailed by AUDION in the Order Form and in accordance with the Contract, within the agreed deadlines and on the basis of the agreed price and with a view to the exploitation of the Advertising by the Customer.
For the Services for which it is responsible, the Service Provider freely determines, under its sole responsibility and its sole control, the logistical, IT and human resources necessary for the performance of the Services.
At AUDION's request, the Service Provider undertakes to provide AUDION with the documentation as well as any element useful and necessary for the use, production and modification of the Deliverables.
The Service Provider expressly undertakes to provide the Services in accordance with the description of the Services contained in the Order Form and the Schedule agreed between the Parties with all the diligence and professionalism required for their proper performance and in compliance with the Contract and good practice.
The Service Provider undertakes to cooperate and collaborate with AUDION.
The Service Provider undertakes, in a proactive approach and according to the planned objectives, to advise, alert, provide any recommendation, propose any improvement and keep AUDION informed.
6. Acceptance of Deliverables
The Service Provider shall submit to AUDION the Deliverables created for the purpose of validating the compliance of the Deliverables with the specifications defined in the Order Form. Upon delivery of each Deliverable by the Service Provider, AUDION shall have a verification period of fifteen (15) days to examine the Deliverables and notify the Service Provider of its decision (i) to accept the Deliverables, (ii) to express reservations or (iii) to reject them.
AUDION's acceptance of Deliverables cannot be tacit.
AUDION undertakes to justify any reservation or refusal in order to allow the Service Provider to modify the relevant Deliverable accordingly.
In the event of reservations or refusals, the Service Provider shall endeavour to modify the Deliverable concerned in order to make it compliant with the specifications defined in the Order Form. Once the modified Deliverable has been delivered to AUDION, the Deliverable acceptance procedure described above will once again apply.
If it is impossible for the Service Provider to achieve the required compliance of the Deliverables with the specifications defined in the Order Form within a reasonable period of time, the Service Provider shall notify AUDION. Within five (5) days of AUDION's receipt of such notification, the Parties shall meet to define an action plan to remedy the situation.
7. Financial provisions
The price of the Services is set out in the Order Form. Unless otherwise stipulated, it is expressed in euros exclusive of tax. Where applicable, value added tax (VAT) will be added to the sums due and will be payable by AUDION.
The terms of payment for the price of the Services are set out in the Order Form.
Payment may be made after an invoice has been sent by the Service Provider at the end of the campaign.
In the event of late payment, the Service Provider may charge default interest on the amounts still due. Late payment interest will be calculated from the day following the due date for payment until the date on which the Service Provider's account is credited. The late payment interest rate is set at three (3) times the legal interest rate applicable in France, increased by the recovery indemnity set at forty (40) euros by decree or its updated amount if applicable, in accordance with the provisions of Article L. 441-10 of the French Commercial Code.
It is expressly agreed that in the event of late payment, the Service Provider may not suspend performance of the Services.
8. Penalties
In the event of non-compliance with the deadlines attributable to the Service Provider, the following penalties shall apply ipso jure: one hundred (100) euros per period of twenty-four (24) working hour(s) of delay.
Penalties due under the terms of the Contract are not in full discharge of AUDION's obligations and are without prejudice to any other remedy available to AUDION under the terms of the Contract. If penalties are thus applicable, AUDION may invoice them to the Service Provider. In the absence of future invoicing, the Service Provider shall pay the penalties within a maximum period of forty-five (45) days end of month after invoicing by AUDION.
9. Intellectual Property
9.1. Pre-existing elements
AUDION grants the Service Provider, within the limits of the rights that it owns, a non-exclusive right to use the pre-existing elements that it may provide to the Service Provider for needs that are exclusively necessary for the Service Provider to fulfil its obligations within the context and for the duration of the Contract.
9.2. Extent of assignment of Intellectual Property Rights
The Service Provider assigns to AUDION, on an exclusive basis, as and when they are completed, the Intellectual Property Rights that it owns attached to the Deliverables and to all the components of the Deliverables taken together or separately.
The Intellectual Property Rights assigned include in particular:
- the non-exclusive right to reproduce, to authorise the reproduction or to have reproduced by any person of AUDION's choice, to duplicate, to print, to record the Deliverables by any process, without limitation of the number of copies or reproductions, permanently or temporarily, by any means, on any media and in any formats, known at the date of signature of the Contract or to come;
- the non-exclusive right to modify or have modified, arrange, adapt, transform or translate all or part of the Deliverables;
- the non-exclusive right to publish, disseminate, distribute, communicate, make available, share, edit, republish and lend all or part of the Deliverables, whether in return for payment or free of charge;
- the exclusive right to represent all or part of the Deliverables by any means using any process known or unknown at the date of signature of the Contract;
- the exclusive right to load, display, execute, transmit, store, decompile and disassemble all or part of the Deliverables, to correct errors and to reverse engineer all or part of the Deliverables for the purpose of exploiting the Advertising;
- the exclusive right to file all or part of the Deliverables for registration of any type of Intellectual Property Rights including any patent, trademark, design, copyright or other applications with the competent authorities worldwide.
The present transfer does not imply any obligation for AUDION and/or its Customer to exploit the Deliverables in any way whatsoever.
This assignment also includes the right for AUDION to assign or grant to third parties and in particular to its Customers, by way of licence or assignment, all Intellectual Property Rights on the Deliverables and to provide all authorisations that the Customer may deem necessary for the exploitation of the Deliverables and the rights on the Deliverables for the purposes of using the Advertising.
The Service Provider undertakes to sign all documents and to take all additional actions requested by AUDION or its Customer that may be required in order to give full effect to this assignment.
With regard to its moral rights, the Service Provider acknowledges that the very nature of the Deliverables requires interactivity and upgradability, as the Deliverables cannot be conceived as intangible and fixed. The Service Provider declares that it is fully aware of this and will not oppose any modifications or developments that the Customer or AUDION may make to the Deliverables, either directly or through any third party of its choice.
9.3.Territory of assignment of Intellectual Property Rights
The assignment of Intellectual Property Rights on the Deliverables is granted by the Service Provider to AUDION for the whole world.
9.4. Duration of the assignment of Intellectual Property Rights
The assignment of the Intellectual Property Rights in the Deliverables is made for the legal term of protection of the Intellectual Property Rights in each of the Deliverables plus any extension or prolongation.
9.5. Propriété ou usage des données
AUDIOIN's delivery to the Service Provider of any documents, files or data entails the transfer to the Service Provider of only those rights necessary for the performance of its obligations under the Contract and does not affect AUDION's or the Customer's Intellectual Property Rights in these elements.
AUDION or its Customer retains all rights to the documents, files and data belonging to it. The reproduction or any other use by the Service Provider of the documents, files or data entrusted by AUDION to the Service Provider for purposes other than the performance of the Contract is prohibited without the prior written consent of AUDION.
As part of its Services, the Service Provider undertakes to take all appropriate measures to prevent the loss or destruction of these documents, files or data, which remain subject to the confidentiality obligations stipulated in the Contract.
If AUDION so requests, the Service Provider undertakes to return to AUDION all documents, files or data entrusted by AUDION to the Service Provider, and in particular all functional, graphic, economic, commercial and strategic elements, and not to retain any copy thereof, subject to elements that it may have to retain in order to comply with legal and regulatory provisions.
The Service Provider is responsible for ensuring that its employees and any subcontractors comply with the obligations set out in this Article.
10. Warranties
The Service Provider warrants that in producing the Deliverables it will not infringe any third party rights and in particular any Intellectual Property Rights. The Service Provider warrants AUDION against any recourse, claims and/or condemnations or other consequences that may result from the action of a third party as a result of the Services.
The Service Provider warrants to comply with the law and regulations applicable to the Contract when performing the Services.
11. Personal Data
The Parties undertake to comply with their obligations under any regulations relating to the protection of personal data, and in particular Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016
12. Duration
The Contract will take effect from the date of signature of the Order Form by the last of the two Parties for the term specified in the Order Form. The term stipulated in the Order Form is firm except in the event of termination in the cases set out below.
13. Termination
13.1. Termination for breach
In the event of a serious or repeated breach by one of the Parties of its obligations under the Contract, after having sent to the defaulting Party, by registered letter with acknowledgement of receipt, a formal notice to cease the breach which has remained unsuccessful within a period of thirty (30) calendar days, the Party suffering the breach may immediately and automatically terminate the Contract without any legal formalities and without prejudice to any other rights and remedies it may have.
13.2. Termination for convenience
In view of the nature of the Services and in particular in view of the fact that AUDION is acting on behalf of a third party Customer, it is expressly agreed between the Parties that AUDION shall have the right to terminate the Contract automatically and by operation of law for convenience, by registered letter with acknowledgement of receipt sent to the Service Provider with a minimum notice period of thirty (30) calendar days, without giving any reason.
In this event, AUDION may, depending on the circumstances and terms to be agreed between the Parties, paying a termination indemnity.
The Parties agree that termination for convenience is unilateral. Consequently, the Service Provider does not have the option of terminating the Contract for convenience and is obliged, except in the event of force majeure or a particularly serious and repeated breach on the part of AUDION, to perform the Services. Failing this, in addition to any damages that AUDION may be entitled to claim, the Service Provider will automatically be required to pay a penalty equivalent to 60% of the total amount of the Contract.
14. Confidentiality
14.1. Obligations
The Parties undertake to treat as strictly confidential all Confidential Information transmitted in connection with the conclusion and performance of the Contract.
The Parties undertake to take all measures to ensure compliance with this obligation of confidentiality and shall refrain from disclosing to any natural or legal person, either directly or indirectly, the Confidential Information and/or reproducing it and/or using it, either on their own behalf or on behalf of third parties, for purposes other than the performance of the Contract. The Parties undertake not to disclose such Confidential Information to third parties, except with the prior written consent of the other Party and provided that such third parties have undertaken in writing to maintain the confidentiality of such Confidential Information in the manner provided for in the Contract. In any event, such disclosure shall be limited to what is essential for the third party to know in order to carry out the tasks entrusted to it. The Parties undertake that the Confidential Information will not be used or exploited, in whole or in part, directly or indirectly, in any context other than the performance of the Contract.
This obligation does not apply to any information which:
- is already publicly known ;
- falls into the public domain other than through an act or omission of the Service Provider;
- was already in the possession of the other Party at the time of its communication and is not already covered by an obligation of confidentiality; or
- is obtained from a third party by the other Party without breach of that third party's confidentiality obligations.
14.2. Duration of confidentiality
The obligations under this Clause relating to the use of Confidential Information shall survive the termination of the Contract, however caused, and shall continue to apply for a period of five (5) years.
At the term of the Contract, the Service Provider undertakes, at AUDION's request, to destroy or return as soon as possible all Confidential Information communicated to it within the framework of the Contract, and may only keep a copy of such information in its confidential files for regulatory or mandatory archiving reasons duly justified to AUDION and in good security and confidentiality conditions.
15. Liability
AUDION and the Service Provider, taking into account their reciprocal commitments and obligations, declare that the prices of the Services reflect the distribution of risks that they wish to share between them and agree that their total maximum liability is limited to the amount excluding taxes paid by AUDION under the Order Form during the twelve (12) month period preceding the event engaging the liability of the Party in question.
The Parties' liability is limited to direct damages only and shall in no event be incurred for any indirect damages, loss of income, loss of profit, operating losses or the cost of interrupting production.`
16. Subcontracting
The Service Provider may not subcontract its rights and obligations under the Contract without the express, prior and written agreement of AUDION and subject to prior approval of its subcontractors by AUDION, in accordance with the provisions of the law of 31st December 1975 relating to subcontracting. In any event, the Service Provider remains jointly and severally liable for the performance of the Services entrusted to any subcontractor, as if it had performed them itself.
In the event that the Service Provider subcontracts all or part of its Services, without AUDION's express prior written consent, AUDION shall have the right to terminate the Contract, under the conditions of the Article "Termination for default", without prejudice to its other rights and remedies.
17. Final provisions
17.1. Nature of Relationship
The Parties are acting as independent co-contractors, and no provision of the Contract shall, under any circumstances whatsoever, be interpreted as conferring on one of the Parties the status of agent, commission agent, distributor, representative or principal of the other Party.
Neither of the Parties undertakes, under the terms of the Contract or in any other capacity, to assume any obligation, regulatory or contractual, incumbent on the other Party, or to interfere in the conduct of the business of the other Party.
The Service Provider remains free to organise itself as it wishes in order to perform the Services referred to in the Contract.
None of the stipulations of the Contract and no action taken by any of the Parties in application of the Contract shall be deemed to constitute a partnership, subordination, association or joint venture between the Parties.
17.2 Force majeure
In the event of a force majeure event, as defined by Article 1218 of the French Civil Code, the Party affected by such an event shall notify the other Party as soon as possible of the nature of the force majeure event and its impact on the Contract.
Neither Party shall be deemed to have failed to perform its obligations under the Contract or shall otherwise be liable to the other Party because of a delay in the performance or non-performance of any of its obligations under the Contract, provided that such delay or non-performance is due to a force majeure event of which it has informed the other Party. The Party affected by a force majeure event shall use its best efforts to remedy the situation.
17.3. Entirety
This Contract constitutes the entire agreement between the Parties with respect to its subject matter. It supersedes all prior documents and agreements between the Parties. This Contract shall prevail over (i) any terms and conditions of sale of the Service Provider, or (ii) other provisions contained in documents issued by the Service Provider, not expressly accepted by AUDION.
17.4. Assignment
The rights and obligations of each of the Parties under the Contract may not be assigned, delegated, subcontracted or transferred in any way whatsoever without the prior written consent of the other Party.
17.5. Waiver
No forbearance or delay by either Party in enforcing its respective rights will prejudice or restrict the rights of that Party and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach. A waiver shall be effective only if it is expressed in writing and signed by a duly authorized representative of the Party giving the waiver.
17.6. Severability
If one or more provisions of this Contract are held to be invalid or declared as such pursuant to a law, a regulation or following a final decision of a competent court, the other provisions will remain in force, it being specified that the Parties may, by mutual agreement, agree to replace the invalidated provisions.
17.7. Modifications
AUDION reserves the right to modify the General Terms and Conditions at any time. Any new version of the said Terms and Conditions will be available on audion.fr and will apply immediately to the Service Provider.
17.8. Governing Law and Jurisdiction.
The Contract is governed by French law (excluding its conflict of laws rules). Any dispute relating to the validity, interpretation or performance of the Contract shall be subject to the exclusive jurisdiction of the competent courts of Paris (notwithstanding multiple defendants or third party proceedings), to which exclusive jurisdiction both Parties hereby expressly submit.
