General Terms & Conditions of Sale

GENERAL CONDITIONS OF SALE OF SERVICES

1. GENERAL

1.1 These general terms and conditions of sale for the provision of services (hereinafter "GTC") apply to the services provided by LUMINESS to any customer (hereinafter the "Customer(s)") for any order for the provision of services (hereinafter the "Services").
1.2 The contract between LUMINESS and its Client is governed exclusively and in order of primacy by:
- The specific conditions expressed by Luminess in a quote (hereinafter the “Quote”);
- These General Terms and Conditions and, where applicable, any purchase order accepted by LUMINESS.

2. ORDERING SERVICES

2.1 Acceptance of a Quote by signature and/or placing an order for Services corresponding to the Quote by the Client implies their express and unreserved acceptance of these General Terms and Conditions, which they acknowledge having read and understood, to the exclusion of any other terms and conditions.
2.2 By accepting the Quote, the Client acknowledges that the Services offered comply with the needs that he has expressed to LUMINESS and that he has received all the information and advice determining his decision to contract.

3. LUMINESS OBLIGATIONS

3.1 Project management
As the project manager, LUMINESS is solely responsible for the means and resources it uses to perform the Services in accordance with the Quotation. However, in the event of the provision of Services incorporated as elements of a system, LUMINESS will not be responsible for the project management of the entire project and will act as a supplier or subcontractor. LUMINESS is not responsible for compatibility with products or services for which it has not previously approved compatibility.

3.2 General obligations
LUMINESS is bound by a duty to advise, alert and warn during the performance of the Services. LUMINESS undertakes to take all possible care and to comply with the rules of the art for the performance of the Services entrusted to it.

3.3 Access to the Customer's environments and premises
In the event of access by LUMINESS to the Client's premises or information systems, LUMINESS undertakes to comply with the Client's procedures, subject to their prior communication.

3.4 LUMINESS Staff
LUMINESS is solely responsible for defining the types of profiles required and assigned to the performance of the Services. LUMINESS personnel assigned to the Services remain, in all circumstances, under the administrative control and hierarchical and disciplinary authority of LUMINESS, no transfer of authority may occur during the performance of the Services. Regardless of the duration and/or location of performance of the Services, LUMINESS personnel may under no circumstances be legally considered an employee of the Client. In its capacity as employer, LUMINESS ensures the administrative, accounting and social management of its employees. It is responsible for compliance with labor legislation and the payment of social security contributions relating to its staff.
 

4. OBLIGATIONS OF THE CUSTOMER

4.1 The Client acknowledges that the quality of the Services provided by LUMINESS also depends on the quality of execution by the Client of its obligations. The Client undertakes in particular to:
- Express and define clearly and exhaustively its needs, constraints, objectives, challenges and business specificities for each of the Services entrusted to LUMINESS;
- Provide LUMINESS with clear, legible, accurate, comprehensive data, information and documentation free from viruses, malware and other malicious programs, within the required timeframes and formats and mobilize the resources necessary for the execution of the Services;
- Assign sufficient, available and competent personnel to carry out the Services for the tasks assigned to it;
- Provide LUMINESS with the resources, including premises, installations, computer and operating systems and software, necessary for the performance of the Services by LUMINESS;
- Respect the rules and procedures provided for, particularly in terms of data security;
- Validate without delay the elements submitted by LUMINESS so as not to cause any delay in execution;
- Guarantee the usage rights of intellectual works (data, texts, graphic elements, software, etc.) used and/or made available to LUMINESS in the context of the execution of the Services;
- Guarantee the access, rights and authorizations necessary for the execution of the Services by LUMINESS;
- Carry out the administrative formalities necessary for the exploitation of the files and data of which it is the owner, in particular personal data files.

4.2 The Client undertakes not to obstruct LUMINESS's interventions that may prove necessary. In the event that LUMINESS requires access to the Client's premises or networks, the latter undertakes to provide all information necessary to comply with the internal regulations in force within its premises as well as all useful information. The Client undertakes to make payment for the Services within the contractual deadlines. The Client guarantees LUMINESS the proper functioning of the IT resources and infrastructure (cabling, power supply, etc.), necessary for the performance of the Services remaining its responsibility. In the event of a delay in the implementation and/or performance of the Services and if this delay is attributable to the Client, or to a representative of the Client, in particular in the implementation of the tasks incumbent upon it, a clear lack of cooperation, a failure to communicate necessary information, LUMINESS reserves the right to claim compensation from the Client corresponding in particular:
- To the immobilization costs of the LUMINESS team in charge of the Services;
- To the costs of immobilizing the IT resources implemented by LUMINESS.
Any delay attributable to the Client or a third party engaged by the Client will exempt LUMINESS from any liability in the event of delay in the execution of the Services for which it is responsible.

5. COMMON OBLIGATIONS

5.1 Cooperation and collaboration of the Parties

The Parties undertake to perform in good faith the obligations imposed on them by these General Terms and Conditions. The Parties undertake to collaborate closely, actively and regularly in the performance of the Services and, as such, will communicate to each other any information, event or difficulty that may have an impact on the proper performance of the Services. Similarly, the Parties will keep each other informed of any actions they may be required to undertake that would be useful in carrying out the joint tasks.

5.2 Privileged interlocutors of the Parties

The Parties will each designate a preferred contact person, chosen from among their staff, who has the knowledge and ability to make the required operational decisions. Each Party will have the option of replacing its preferred contact person, provided that the replacement has equivalent skills and that the replacement is carried out without additional cost or discontinuity and does not affect the proper performance of the Services. 

6. SERVICES

6.1 Time limits for the execution of the Services
The deadlines for the execution of the Services ordered by the Client are specified in the Quote. The Parties undertake to consult on the means to limit any possible delay and will establish a new schedule or allocation.

6.3 Place of performance of the Services
The place(s) of performance of the Services will be agreed by the Parties and specified in the Quotation. Any change in the place of performance may modify the financial conditions of the Quotation.

6.4 Reception of Services
The Customer has a period of five (5) days from delivery of the Services to notify LUMINESS of any non-conformity with the Quote. Failing this, the Services will be deemed compliant. Any claim must be notified by the Customer under the conditions set out in Article 13.6 “Notification” of these General Terms and Conditions. It must include at least the name of the Customer, the reference of the Quote and a description of the non-conformity noted. Any claim notified by the Customer cannot have the effect of suspending the payment by the latter for the Services concerned. If the defect and/or non-conformity is proven and recognized by LUMINESS as such, LUMINESS may decide, at its discretion, either to take back or have taken back the Service in question at no cost to the Customer, or to reimburse the Customer in whole or in part. Replacement or reimbursement constitutes compensation for the Customer’s entire damage. In any event, no replacement operation or refund will take place if the Services have been altered or rendered unusable by the Client or a third party. 

6.5 Modifications to the Services
6.5.1 Modifications initiated by LUMINESS
LUMINESS reserves the right to modify at any time certain ergonomic, aesthetic and/or functional specifications of the Services, without affecting their main characteristics and subject to maintaining equivalent performance and quality. The means implemented by LUMINESS, as provided for in the Quote, may evolve in particular according to the evolution of the Client's volume and support the necessary power increases during the duration of the Services. In any event, any proposed evolution will only be implemented once it has been the subject of a new Quote accepted by the Client. When a modification appears necessary to LUMINESS due to a discrepancy between reality and the initial assumptions taken into account for the execution of the Services, LUMINESS will inform the Client of the modification in writing. In the event that the Client refuses the modification proposed by LUMINESS or in the event of silence from the latter for five working days, LUMINESS will have the right to terminate the Quote concerned by registered letter with acknowledgment of receipt.
Termination will be effective upon receipt of the registered letter, the acknowledgment of receipt being proof. The Client will be liable for the amounts of the Services performed up to the date of termination. LUMINESS will not be liable for any compensation.
6.5.2 Modifications at the initiative of the Customer
Any request for modification of the Services, after acceptance of the Quote, must be addressed to LUMINESS in writing, specifying the nature and implications of the proposed modification. LUMINESS will issue a new Quote or a revised quote in response. The Client has five working days to accept the new Quote. After this period, the Quote will be considered rejected by the Client and will become null and void. 
6.5.3 Consequences of changes
LUMINESS draws the Client's attention, which the Client accepts, that any request for modification during the project is likely to generate sometimes significant delays compared to the initially agreed forecast schedule.

6.6 Reversibility
In the event of termination of the contractual relationship, LUMINESS undertakes to return, or possibly destroy, at the Client's choice, at the rate in effect at the time of notification of reversibility, at the Client's first request, under the conditions set out in Article 13.6 "Notification" of these General Terms and Conditions, all elements transmitted by the Client (hereinafter the "Elements"). The Client will actively collaborate with LUMINESS to facilitate the recovery of the Elements. During the reversibility phase, any service level commitments will be suspended. At the Client's request, LUMINESS may provide additional technical assistance services for the Client and/or the third party designated by it, within the framework of reversibility, invoiced at the LUMINESS rate in effect at the time of notification of reversibility and which may give rise to the establishment of a reversibility plan.

7. PERSONAL DATA

7.1 Legal framework
Any information relating to an identified or identifiable person, directly or indirectly, in particular by reference to an identification number, or to one or more specific elements concerning him, communicated to the Parties or made accessible to them within the framework of the performance of the Contract is considered to be personal data (hereinafter “Personal Data”).
As part of their contractual relations, the Parties undertake to comply with the legal and regulatory provisions applicable to the processing of Personal Data (hereinafter, “Legislation applicable to Personal Data”).

7.2 Personal Data collected for order management 
The Personal Data collected by LUMINESS for the preparation of the Quote (surname, first name, date of birth, address, telephone number, email address, bank details, etc.) have been collected with the express prior consent of the Client and are recorded in its customer file and mainly used for the proper management of relations with the Client and the processing of orders. They may also be used for the prevention of non-payment or commercial prospecting.
The Personal Data collected will be kept for as long as necessary during the processing of the order and the execution of the Contract and up to three years after the end of the commercial relationship, unless:
- A longer retention period is authorized or imposed by a legal or regulatory provision;
- The Client has exercised, under the conditions provided below, one of the rights granted to him by law (right of opposition or withdrawal).
Access to Personal Data is strictly limited to LUMINESS employees and agents, authorized to process them due to their duties. The information collected may possibly be communicated to third parties linked to LUMINESS by contract for the performance of subcontracted tasks necessary for the management of the order, without the Client's authorization being necessary. It is specified that, within the framework of the performance of their services, third parties have only limited access to Personal Data and have a contractual obligation to use them in accordance with the provisions of the Legislation applicable to Personal Data. Apart from the cases set out above, LUMINESS undertakes not to sell, rent, transfer or give access to third parties to Personal Data without the Client's prior consent, unless compelled to do so due to a legitimate reason (legal obligation, fight against fraud or abuse, exercise of defense rights, etc.).
If the provisions of the Legislation applicable to Personal Data so provide, any natural person concerned who is a member of the Client's staff has the right to access, rectify, transfer and erase their data or to limit processing. They may also, for legitimate reasons, object to the processing of their data.
In this case, the person concerned may, subject to the production of valid proof of identity, exercise their rights by contacting the LUMINESS representative at the address indicated in the Quote. 
In the event that the Client entrusts LUMINESS with Services requiring the processing of Personal Data by LUMINESS, the terms and conditions of this processing are governed in accordance with the applicable provisions of the Quote.

8. FINANCIAL CONDITIONS

8.1 Price of the Services
In consideration for (i) the performance of the Services, and where applicable (ii) the transfer to the Client of the rights to the Deliverables, LUMINESS will receive the price defined in the Quote.

8.2 Terms of payment
Where applicable, a billing schedule for the Services is defined in the Quote. Invoices are payable within 30 days of receipt by the Client, by bank transfer.
In any case, all costs inherent in the payment of invoices remain the sole responsibility of the Customer.
In the event that one of the invoices is subject to value added tax or any other tax calculated on turnover, the territorial rules specific to this tax will apply. 

8.3 Price revision
The prices of the Services indicated in the Quote may be subject, each January 1st, to a revision by LUMINESS according to the following formula:
P1 = P0 x (S1 / S0)
P1: revised price;
P0: original contract price;
S0: SYNTEC index known on the date of acceptance of the Quote; 
S1: latest index published on the revision date by INSEE.

8.4 Late payment
The Customer undertakes to pay invoices in full. Payment of an invoice may not be deferred even if it is the subject of a duly justified dispute by the Customer and communicated to LUMINESS under the conditions set out in Article 13.6 “Notification” of these General Terms and Conditions.
Any late payment automatically results in the application of late payment penalties, the rate of which is equal to the interest rate applied by the European Central Bank to its most recent refinancing operation, increased by 10 percentage points, in addition to a fixed compensation of 40 (forty) euros in recovery costs. In the event of non-payment of a single invoice on its due date, LUMINESS may suspend the performance of the Services until full payment of the amounts owed by the Client. The Parties expressly acknowledge that the suspension of performance of the Services does not in any case constitute a waiver of the provisions of Article 11 "Termination" of these General Terms and Conditions, LUMINESS reserving the right to assert said clause at any time, notwithstanding the payment of late payment interest and damages provided for by law.
 

9. INTELLECTUAL PROPERTY

9.1 Intellectual property rights in LUMINESS elements
9.1.1 Means, tools, inventions, methods
LUMINESS retains exclusive ownership of pre-existing means, tools, inventions or methods, created or implemented during the performance of the Services, whether or not they are subject to specific protection.
No right of use or other right is conferred on the Customer on the aforementioned elements.
9.1.2 Know-how
The Client acknowledges that LUMINESS is the sole owner of its know-how and other trade secrets relating to the Services and all other information and prerogatives relating thereto, the possible communication of which to the Client may under no circumstances constitute any transfer of rights. It is expressly agreed between the Parties that LUMINESS will have the possibility of using the lessons learned from the Services entrusted to it and of developing elements similar to those developed within the framework of the Services.
9.1.3 Software
Software packages and other general or utility programs (compilers, routines, service or application programs) that may have been used to provide the Services remain the property of LUMINESS or a third-party publisher. Under these conditions, the Client is responsible for obtaining the usage rights relating to these software packages and other programs, if applicable.
9.2 Intellectual Property Rights on the Client's Elements The Client remains the owner of all Elements (software, documents, data, information, files) that it transmits to LUMINESS as part of the Services. The Client guarantees to LUMINESS that it holds all rights to all Elements communicated and delivered to LUMINESS as part of the Services and that it has the necessary rights to authorize LUMINESS to use these Elements.
9.3 Assignment of Deliverables
Any development, configuration or documentation that LUMINESS may be required to carry out within the framework of the Services remains its property. Subject to the agreement of the Parties and payment of all sums due by the Client for the Services, LUMINESS may assign to the Client the following rights to specific developments and specific documentation as carried out for the Client's needs and specifically agreed in writing in the Quote (hereinafter "Deliverables"):
Either a non-exclusive and non-transferable right of use of the Deliverables for the internal needs of the Customer;
Either the rights of use, reproduction, modification, distribution, adaptation, translation and representation of the Deliverables in France, for the entire duration of the intellectual property rights attached to these Deliverables.
The fixed price of the right to use the Deliverables concessions will be included in the price of the Services.
In the event that LUMINESS uses or integrates software components subject to so-called "free" (or "open-source") software licenses, of which it is not the author and/or publisher, any rights granted to the Client on said software would be governed by the provisions specific to them.
9.4 Eviction guarantee
The Client guarantees LUMINESS against any action for infringement or action to claim pre-existing intellectual property rights brought by any third party and relating to all or part of the Elements communicated and delivered by it to LUMINESS within the framework of the execution of the Services.
 

10. RESPONSIBILITY

10.1 Responsibility of LUMINESS
As part of its obligations, LUMINESS is bound by an obligation of means. LUMINESS may only be held liable for direct and immediate damage caused during the performance of the Services, within the limit of the value of the Service in question paid by the Client and during which the damage occurred. Under no circumstances may LUMINESS be held liable in the event of fault, negligence, omission or failure of the Client or a third party over whom LUMINESS has no power of control or supervision. LUMINESS may not be held liable in the event of delay or damage resulting from the insufficiency, inaccuracy or illegality of the information and/or documentation and/or Elements provided by the Client. If at any stage of the performance of the Services, the Client refuses to take into account the recommendations, advice or warnings of LUMINESS, the latter shall be released from all liability. LUMINESS shall under no circumstances be liable for indirect and/or immaterial damages related to the Services. Indirect and/or immaterial damages include, in particular, loss of turnover, margins, profits, loss of orders, customers, operations, or damage to brand image and third-party action.

10.2 Responsibility of the Client
The Client undertakes to comply with all applicable legal and regulatory requirements. As such, LUMINESS shall not be held liable for the Client's failure to comply with its legal obligations. In particular, the Client is responsible for processing its Personal Data and is responsible for the formalities required under the applicable regulations in force.
 

11. TERMINATION

11.1 Termination for default
In the event of a serious or repeated breach by one of the Parties of an essential obligation not repaired within a period of thirty (30) days from the sending of a registered letter with acknowledgment of receipt notifying the breach in question and addressed by the other Party, the latter may terminate the order concerned as of right and without legal formality, without prejudice to any damages to which the latter may claim.

11.2 Consequences of termination
In the event of termination, whatever the cause, the amounts paid to LUMINESS under this Agreement shall remain due. Termination, whatever the cause, shall result in the immediate payment of the amounts remaining due for the Services already performed by LUMINESS on the date of termination, whether or not they have been invoiced. The contractual provisions which, by their nature, are intended to continue to apply, shall survive the termination of the Services for whatever reason. All information and their reproduction, all documents, materials, tools or other information transmitted by a Party must be returned to it by the other Party immediately, upon first request, and at the latest on the effective date of termination, whatever the cause.
 

12. CONFIDENTIALITY

All information communicated by one of the Parties to the other Party in the context of the execution or the order of Services, of any nature whatsoever (financial, legal, technical, commercial), is considered confidential. either in tangible form or in intangible form (hereinafter “Confidential Information”). The Parties undertake to respect the confidentiality of Confidential Information and to use it within the limits of what is strictly necessary for the performance of the Services. Notwithstanding the foregoing, the receiving Party will not be liable to the disclosing Party for any Confidential Information of which the receiving Party can prove:
- That it disclosed them after written authorization from the Disclosing Party or that the disclosure was made by the latter;
- That they have fallen into the public domain before or after their disclosure or were part of the state of the art at the time of their disclosure, provided, in both cases, that this is not the result of a breach of an obligation of confidentiality;
- That they result from internal developments without use of Confidential Information within the meaning of this article;
- That they were received from a third party without breach of an obligation of confidentiality towards the Disclosing Party;
- That their disclosure was imposed by the application of a mandatory legal or regulatory provision or by the application of a final court decision.
Each of the Parties undertakes to ensure that this confidentiality obligation is respected by all of its employees, collaborators and any subcontractors. The obligation of confidentiality is imposed on the Parties during the execution of the Services and for two (2) years from the completion of the Services.
 

13. MISCELLANEOUS

13.1 Non-waiver
No fact of tolerance by one of the Parties, whether permanently or temporarily, can constitute a waiver of the latter to avail itself of any of the stipulations hereof.

13.2 Partial invalidity
If one or more stipulations of the GTC are held to be invalid or declared as such in application of a law, a regulation or following a final decision of a competent court, it (these) will be / have been deemed (s) unwritten (s) and the other stipulations will retain all their force and scope.

13.3 Titles
In the event of interpretation difficulties between any of the titles and the content of a clause it designates, the title will be declared non-existent and the content of the clause will prevail over the title.

13.4 Independence of the Parties
Acceptance of a Quote does not create any relationship of subordination, agency, association or joint venture between them, de jure or de facto, each Party retaining its independence and autonomy. No clause of the T&Cs may be interpreted as giving the other Party the power to direct the activities of the other Party and each Party remains fully and exclusively responsible for the control and supervision of its employees.

13.5 Non-solicitation
During the duration of the execution of the Services and for a period of six (6) months following their termination for whatever reason, the Client shall refrain from directly or indirectly engaging any member of LUMINESS staff.

13.6 Notice
Any notification must be in writing and will be validly given if addressed by hand, or sent by registered mail with acknowledgment of receipt to the attention of the representatives as mentioned in the Quotation. Notifications given by hand will be presumed to have been given on the date of their delivery to the recipient, as evidenced by the delivery receipt. Notifications given by registered mail with acknowledgment of receipt will be presumed to have been given on the date of their first presentation to the recipient's address.

13.7 Convention of proof
The Parties agree to give probative value to electronic mail and, more generally, to exchanges, transmissions, and shipments, including deliveries of electronic Deliverables, made between them. Consequently, the computerized records stored in LUMINESS's computer systems are considered as proof of the communications and transactions that have taken place between the Client and LUMINESS. The Client further expressly acknowledges that all validations/acceptances made in computer or electronic format or medium have, between it and LUMINESS, the same value as an agreement and a handwritten signature. Thus, the Client undertakes not to contest the admissibility, validity, or probative value of the aforementioned elements, on the basis of any legal provision whatsoever, with the exception of public policy provisions.

13.8 Referencing
For the sole purpose of promoting its activities, LUMINESS may mention the name and logo of the Client as well as a brief description of the Services carried out by LUMINESS on behalf of the Client, on a list of references, both for its internal and external communications needs.

13.9 Force Majeure
Neither Party shall be held liable vis-à-vis the other in the event of non-performance or delay in the performance of its obligations due to the occurrence of an event of force majeure. In this case, the obligations provided for hereunder will be suspended. If the event of force majeure should last more than thirty (30) consecutive days, each Party will have the option to terminate the Services early under the conditions provided for in Article 13.6 "Notification", without legal formalities, with effect immediate, without any compensation from either Party.

14. APPLICABLE LAW AND COMPETENT JURISDICTION

These General Terms and Conditions and all Services performed pursuant to them by LUMINESS to the Client shall be governed by Malagasy law. In the event of a dispute, and after an attempt to find an amicable solution, express jurisdiction is granted to the competent courts of Antananarivo notwithstanding multiple defendants or third-party claims, even for emergency procedures or interim relief proceedings, in summary proceedings or by application.
 

15. COMPLIANCE

15.1 General compliance
The Client represents and warrants that it will comply with applicable law in carrying out the activities provided for in this Agreement, including laws and regulations relating to taxation, exchange control and customs obligations, as well as any legislation, rule or regulation relating to anti-corruption, competition law, the fight against money laundering, influence peddling or any other criminal provision in general, applicable to LUMINESS and/or the Client.

15.2 Export control compliance
LUMINESS shall be entitled not to fulfill its obligations if any national, international regulation or other mandatory constraint relating to national or international trade, import or export, customs obligations, embargo measures or other sanctions, opposes or contravenes the validity or execution of its obligations. If the Customer transfers or assigns the goods supplied by LUMINESS (hardware, software and/or technology as well as the corresponding documentation, regardless of the method of supply) or the services provided by LUMINESS (including any kind of technical assistance) to a third party, the Customer undertakes to comply with the national and international regulations in force regarding export control, or re-exports. In such cases, the Customer shall comply with the regulations relating to export control, or re-exports of France, the European Union and the United States. The Customer shall, upon request from LUMINESS, provide it as soon as possible with all information relating to the end customer, the final destination and the final use of the goods and services provided by LUMINESS, as well as existing export restrictions to enable the authorities or LUMINESS to carry out export control checks.