1 Scope / enforceability 1.1 These Standard Terms and Conditions of Service (“STCS“) apply to all dealings between (i) ASA FRANCE, a société à responsabilité limitée with a share capital of €5,000, registered as a company in Montpellier under number 793 738 162, with registered office at 58 Rue de Colombier, BAILLARGUES (34 670), VAT number FR54572059939, and with the following insurance references: “Certificate of Entry 9186” at the International Transport Intermediaries Club Ltd. [Confirm the insurance references] (“ASA FRANCE“), and (ii) any natural or legal person carrying on a professional activity who, for and on its behalf, requests a Service or benefits from a Service for its professional requirements (“Client“). 1.2 The purpose of these STCS is to set out the conditions under which ASA FRANCE performs its Service(s), it being understood that these STCS apply without restriction or reservation to all Services, notwithstanding any clauses that may appear on the Client’s documents and, in particular, its general terms and conditions of purchase. 1.3 For each Service to be carried out, the following documents form an integral part of the contract between ASA FRANCE and the Client, listed in order of importance: the Technical and Commercial Proposal, any special terms and conditions specific to the performance of each Service, these STCS, the ASA FRANCE acknowledgement of order receipt. In the event of discrepancy between these various documents, the higher ranking document will prevail. 1.4 All information contained in documents presenting ASA FRANCE’s activities or on its website or in its prospectuses, price lists and diagrams is given for illustrative purposes only and ASA FRANCE reserves the right to make any changes to that information at any time and without giving prior notice. 1.5 The fact that ASA FRANCE does not at any time exercise a right to which it is entitled under these STCS will not under any circumstances operate as an express or tacit waiver by ASA FRANCE of the right to exercise that right in the future. 1.6 These STCS, which replace any version previously issued, are applicable with effect from 01.02.2022. 1.7 2 Definitions The following capitalised terms used in these STCS will have the meaning given to them below, whether used in the singular or plural. « Client data » : all information, documents, studies, plans or drawings handed over by the Client to ASA FRANCE for the purposes of carrying out the Service(s). « Deliverable » : any document produced and handed over by ASA FRANCE in relation to the Service, such as the survey report or risk prevention report, in its preliminary or final version, as well as any presentation documents handed over to the Client in connection with any training of any kind delivered on any medium by ASA FRANCE in connection with the Service. « Operation » : any operation involving the handling or transport of industrial equipment, goods or heavy packages, planned or carried out by the Client or its insured, in relation to the Service referred to in Article 4. « Confidential information » : any information, of any kind and on any medium, obtained from the other Party during the performance of the Service, including Client Data, Deliverables, discussions, negotiations and terms of the Technical and Commercial Proposal, all contractual documents, all documents and information relating to the Operation, intellectual and/or industrial property, formulae, techniques, know-how, organisational conditions and commercial strategy, working methods and business secrets of each of the Parties. « Party » : ASA FRANCE or the Client, either individually or collectively. « Service » : the service carried out by ASA FRANCE as referred to in Section 4 and defined in the Technical and Commercial Proposal. « Technical and Commercial proposal » : the technical and commercial proposal referred to in Section 5.1. « Site » : place where the Operation is carried out. 3 Applicable law – Competent court 3.1 The Services and the commercial relations between ASA FRANCE and the Client are governed by French law alone. 3.2 Before bringing any legal action, ASA FRANCE and the Client will endeavour to resolve any disputes amicably. Either Party will inform the other Party, by registered letter with acknowledgement of receipt, of the reasons for the disagreement and will send any documents considered useful. The Parties will endeavour to reach agreement within thirty (30) days of receiving that letter. 3.3 IF THE PARTIES FAIL TO REACH AGREEMENT UNDER THE TERMS SET OUT ABOVE, THEY AGREE TO SUBMIT ANY DISPUTE OF ANY KIND ARISING FROM THE APPLICATION, INTERPRETATION OR PERFORMANCE OF THESE STCS AND, MORE GENERALLY, FROM THE PERFORMANCE OR SEVERANCE OF THEIR COMMERCIAL RELATIONS, TO THE MONTPELLIER COMMERCIAL COURT. THIS CLAUSE APPLIES EVEN IN THE CASE OF SUMMARY PROCEEDINGS, INTERLOCUTORY APPLICATIONS, THIRD PARTY JOINDERS OR MULTIPLE DEFENDANTS. 4 Services ASA FRANCE may offer the types of Services described in this section which are based on its exclusively scientific and technical expertise, as an independent and impartial specialist. The content and scope of each Service will be defined in the Technical and Commercial Proposal. 4.1 Surveying service in relation to claims handling In the event of claims arising from an Operation, ASA FRANCE will conduct a survey in order to: (i) organise and carry out the operations for assessing any damage caused as a result of the incident, (ii) determine the quantum of the damage sustained and, if possible, its origin, (iii) make any useful recommendations for the preservation of property or for limiting the damage caused. As part of this survey Service, ASA FRANCE may be granted authority to sell salvage goods under the terms set out in the Appendix « Terms and conditions governing the sale of salvage goods ». 4.2 Risk Prevention 4.2.1 This Service involves assisting the Client during one or more of the following phases: (i) providing assistance in the study and design phase to anticipate the risks associated with the Operation; (ii) identifying the risks associated with the Operation; (iii) issuing recommendations on how to organise the Operation to reduce the associated risks; (iv) checking that the recommendations made are being properly observed on the Site and reacting, during the Operation, to any unexpected event on the Site by analysing the consequences and making recommendations to make the Operation safer. 4.2.2 This Service does not include any direct organisation, carrying out or performance of the Operation itself, which remains the sole responsibility of the Client. 4.3 Consulting/training This Service involves analysing the Client’s work process, identifying procedures to minimise the risks associated with Operations, providing practical tools and training the Client’s teams in their use of those tools. 5 Ordering a service 5.1 Before any Service is carried out, ASA FRANCE will draw up a proposal setting out the commercial, technical and financial conditions applicable to the Service («Technical and Commercial Proposal »). ASA FRANCE will send the Client this proposal at the Client’s express request. The proposal will be drawn up in accordance with the needs expressed by the Client at the time of the request, and will be based exclusively on the Client Data. This Client Data will be collected by ASA FRANCE by any written means. 5.2 The Client alone is responsible for ensuring that the Service complies with the standards, laws, regulations and sectoral rules specifically applicable to its area of activity and business. Therefore, before the Technical and Commercial Proposal is drawn up, the Client must provide ASA FRANCE with all relevant information so that ASA FRANCE can carry out the Service in compliance with the applicable standards, laws, regulations and rules. This information must therefore be supplied to ASA FRANCE as part of the Client Data. If this information is not provided before the Technical and Commercial Proposal is drawn up, and incorporated into the proposal, ASA FRANCE cannot be expected to carry out the Service in accordance with the relevant standards, laws, regulations and rules. 5.3 Each Technical and Commercial Proposal will be sent by email to the email address provided by the Client at the time of its request to ASA FRANCE. 5.4 Unless otherwise specified, each Technical and Commercial Proposal are valid for a period of THIRTY (30) days following the date on which they are issued by ASA FRANCE. 5.5 For each Service ordered, the Client must accept the Technical and Commercial Proposal within the time period indicated either (i) by sending the Technical and Commercial Proposal, duly initialled and signed, to ASA FRANCE or (ii) by issuing a duly initialled and signed purchase order consistent with the Technical and Commercial Proposal, and containing a reference thereto. 5.6 Orders for Services will not be fulfilled until ASA France has accepted them in writing or starts carrying out the Service. Therefore, the contract is only deemed to have been formed between the Parties upon ASA FRANCE’s acceptance of the Service order. 5.7 The contract is concluded in consideration of the person of the Client, and cannot be transferred without ASA FRANCE’s prior written agreement. 5.8 ASA FRANCE’s acceptance of the order, even if accepted in writing in the form of an order confirmation, remains subject to the condition that, until the completion of the Service, no financial risk must emerge or any other circumstance that may jeopardise the Service. In that case, ASA FRANCE may demand guarantees and/or special payment terms. 5.9 Any change to a Service ordered by the Client and accepted by ASA FRANCE:
- is subject to prior express acceptance on the part of ASA FRANCE. By ordering a Service, the Client expresses its irrevocable consent to that Service such that it cannot be modified or cancelled without ASA FRANCE’s express written acceptance.
- may give rise to specific additional charges, based on a quotation accepted in advance by the Client, according to the nature and/or extent of the changes requested.
6 Asa France’s obligations 6.1 ASA FRANCE will take all necessary care and precautions in the intellectual and physical performance of each Service so as to ensure that the Service is carried out in accordance with the Technical and Commercial Proposal and consistent with the latest state of the art and best practices in relation to consultancy and surveying services, particularly in the areas of handling, maritime transport and aviation. As regards the tasks to be performed, it will assign staff with expertise in the relevant subject-matter. Unless otherwise agreed, ASA FRANCE is bound by a best-endeavours obligation with respect to the Services carried out. 6.2 Where technical or safety standards or particular laws or regulations are specifically applicable to the Client’s sector of activity or to the Operation, ASA FRANCE will carry out the Service in accordance with such standards, rules, laws or regulations only if they are expressly indicated in the Technical and Commercial Proposal. 6.3 If any difficulties are encountered in the performance of the Service, ASA FRANCE will inform the Client immediately and provide any written recommendations that may be reasonably useful in preventing any harm or damage connected with the Operation to which the Service corresponds. If the Client carries out the Operation without following the recommendations given, ASA FRANCE cannot be held liable under Section 11.2. 6.4 If, as a result of an event occurring after the conclusion of the contract, ASA FRANCE’s involvement becomes inappropriate owing to a conflict of interest or the need for technical expertise that falls outside of its area of expertise, ASA FRANCE will immediately inform the Client in writing. The contract may then be terminated without compensation being payable by either Party, under the conditions set out in Section 14.2. 7 Client’s Obligations 7.1 The Client declares that it is aware that its involvement and co-operation are necessary for ensuring that the Service is carried out properly. It therefore agrees to provide ASA FRANCE, as soon as possible following its request, with all details and information enabling ASA FRANCE to carry out the Service under satisfactory conditions and, more generally, to provide all financial, material and technical resources as well as any useful and necessary information. 7.2 Accordingly, the Client agrees to hand over any information and/or document requested by ASA FRANCE for the purposes of performing the Service. 7.3 Where ASA FRANCE needs to be present on the Site to carry out the Service, the Client will grant all necessary accesses. 8 Conditions for performance of the service 8.1 Lead times for the service ASA FRANCE will adhere to the schedule for carrying out the Service as defined in the Technical and Commercial Proposal. If, as a result of a change in the schedule for carrying out the Operation, the Client requests a corresponding change in the schedule for carrying out the Service, ASA FRANCE may, depending on its availability, refuse that request at its sole discretion. In that case, the contract between the Parties would be terminated without compensation being payable by either Party. The Client would be required to pay ASA FRANCE the amount corresponding to the Services already performed. 8.2 Deliverables
8.2.1 In performing a Service, ASA FRANCE may need to supply one or more Deliverables to the Client, in accordance with the conditions set out in this section. 8.2.2 Unless otherwise stated in the Technical and Commercial Proposal, each Deliverable will be supplied in electronic format only to the email address indicated by the Client at the time the order was placed. 8.2.3 The Client will have a period of FIFTEEN (15) days as from receiving the Deliverable to inform ASA France of any reservations regarding the conformity of the Deliverable with the Technical and Commercial Proposal. If no reservations are expressed within the time period mentioned above, the Deliverable will be deemed to comply with the Technical and Commercial Proposal and to have been accepted by the Client. All Client reservations must be expressed in writing, sent by email to ASA FRANCE within the above time period, and contain a clear, precise and substantiated description of the reasons invoked in support of these reservations. If the above requirements are not fulfilled, the reservation need not be taken into consideration by ASA FRANCE, and the Deliverable will be deemed compliant with the Technical and Commercial Proposal. Should ASA FRANCE consider that the reservations expressed by the Client are sufficiently justified, it will supply a modified Deliverable as soon as possible. 8.3 Independence ASA FRANCE is independent from the Client and will remain so throughout the duration of the Service. Accordingly, ASA FRANCE is not permitted under any circumstances to act for and on behalf of the Client, except in relation to the sale of salvage goods under the terms and conditions appended hereto, and cannot bind the Client to third parties. The Client remains responsible for the operation of its business and, as such, will alone assume the risks and benefits of its activities. It undertakes to comply with all applicable laws and regulations. 8.4 Subcontracting ASA FRANCE remains free to call on any third party or parties of its choice to carry out all or part of the Service. ASA FRANCE will in all cases remain fully liable to the Client for the performance of the Service in accordance with the terms of the Technical and Commercial Proposal. 9 Financial terms and conditions 9.1 Cost of the consultancy or survey service 9.1.1 Unless otherwise stated in the Technical and Commercial Proposal, the cost of the Service is made up of the following:
- a fixed hourly fee corresponding to ASA FRANCE’s hourly rate for intellectual services and incidental expenses such as copies, photos, measurements, protective equipment, measuring instruments and the like;
- a fixed rate per kilometre corresponding to the travel costs incurred by ASA FRANCE;
- fixed costs corresponding to the actions taken by ASA FRANCE in relation to the administrative handling of the project;
- any additional costs depending on the nature of the Service.
These fees and costs are firm and non-revisable throughout the duration of the Service, unless otherwise agreed by the Parties, and are exclusive of VAT or equivalent tax. 9.1.2 Fixed hourly rate The fixed Service rate is calculated on the basis of ASA FRANCE’s hourly rate in force at the time of drawing up the Technical and Commercial Proposal multiplied by the number of hours calculated as being necessary to carry out the Service. 9.1.3 Fixed rate per kilometre The fixed rate per kilometre is calculated on the basis of the rate per kilometre applied by ASA FRANCE at the time of drawing up the Technical and Commercial Proposal multiplied by the number of kilometres calculated by ASA FRANCE as being necessary to carry out the Service. 9.1.4 Fixed administrative costs Fixed administrative costs are made up of a fixed amount calculated on the basis of ASA FRANCE’s cost schedule at the time of drawing up the Technical and Commercial Proposal. 9.1.5 Travel and accomodation costs 9.1.6 Travel and accommodation costs are calculated in line with the pre-VAT cost charged to ASA FRANCE by the transport and accommodation service providers, plus a rate of TEN (10) % to cover the additional costs associated with organising this transport. The transport and accommodation categories will be agreed in advance with the Client in the Technical and Commercial Proposal. 9.1.7 The financial conditions applicable to the « sale of salvage goods » are set out in the corresponding Appendix. 9.2 Payment terms 9.2.1 Unless otherwise agreed, all invoices sent by ASA FRANCE must be paid within THIRTY (30) days of the invoice date. 9.2.2 All sums owed to ASA FRANCE in connection with the Service are payable by bank transfer only. All such sums will be detailed in invoices issued pursuant to Article L. 441-9 of the French Commercial Code. 9.2.3 If any sum owed in connection with the Service is not paid in whole or in part on the relevant due date, late payment interest will be charged at rate of SIX (6) times the legal interest rate, in accordance with Article L. 441-10 of the French Commercial Code. If the Client is late in making payment, it will automatically owe ASA FRANCE fixed compensation for recovery costs of FORTY (40) euros. If ASA FRANCE’s recovery costs are greater than the amount of this fixed compensation, ASA FRANCE reserves the right to claim additional compensation from the Client upon presentation of supporting documents. 9.3 In the event of late payment, all other sums owed will fall due for immediate payment, without prejudice to any other action that ASA FRANCE may be entitled to take against the Client in that connection. It is expressly stipulated that in this case, the outstanding sums will be increased by a fixed amount of compensation set at TWELVE PERCENT (12%) of the sums payable, not including any interest, costs and fees that might result from contentious proceedings. This fixed compensation cannot be less than FIFTY euros (€50) excluding VAT. 9.4 Any sum paid before the Service is carried out will constitute a down payment confirming the Client’s acceptance of the Service order. 9.5 Unless the Service provider has given its prior express consent in writing, and provided that the mutual claims and liabilities are certain, liquid and payable, the Client is not allowed to offset any late penalties or penalties for non-conformity of the ordered Service against the sums that the Client owes to ASA FRANCE in respect of that Service. 9.6 Should a Client’s financial situation present a risk in terms of the recovery of the sums owed, ASA FRANCE reserves the right to demand full payment upfront or to demand any payment guarantees that it considers necessary. If such guarantees cannot be obtained for whatever reason, ASA FRANCE reserves the right to cancel any orders in progress without having to pay compensation. 10 Confidentiality / intellectual property 10.1 Confidentiality The Parties agree not to disclose Confidential Information or allow Confidential Information to be disclosed, directly or indirectly, in whole or in part, to any third party whatsoever, except for information that is strictly necessary for persons involved in the Service. The Parties agree to take all necessary and reasonable precautions to prevent disclosure or prohibited use of Confidential Information by their employees, workers and professionals acting on their behalf, in particular by imposing on them the same confidentiality duty. The Parties will ensure that their employees, workers and professionals acting on their behalf will observe this confidentiality duty under the conditions set out in Article 1204 of the French Civil Code. This confidentiality duty remains in force for a period of FIVE (5) years following completion of the Service. 10.2 Use of client data by ASA FRANCE Where Client Data is protected by intellectual property rights, and to enable ASA FRANCE to carry out the Service, the Client grants ASA FRANCE the following rights over Client Data:
- the right to reproduce, fix, record and use Client Data by any technical means, known or unknown, on paper or digital medium, in unlimited numbers;
- the right to disclose, disseminate or communicate Client Data to its staff members or any third party, including its subcontractors and workers who need to be familiar with that data in order to carry out the Services;
- the right to adapt, modify, correct or translate all or part of Client Data, including its format, presentation and content, to add certain new elements or to delete elements;
- the right to insert all or part of Client Data into any composite creation produced at ASA FRANCE’s initiative by its employees or by any third party designated by ASA FRANCE and to reproduce, represent and/or adapt that composite creation in accordance with all Client Data supplied under this section.
These rights are granted to ASA FRANCE on a worldwide basis, for the duration of the Service and for the exclusive purpose of enabling ASA FRANCE to carry out the Service, or to ensure compliance with the legal obligations incumbent upon it. These rights are granted to ASA FRANCE on a non-exclusive and non-transferable basis and free of charge. 10.3 Intellectual property
10.3.1 Ownership of deliverables 10.3.2 All ASA FRANCE Deliverables are protected by laws and international treaties on intellectual property rights including, without limitation, copyright and/or design rights. All such rights belong exclusively to ASA FRANCE, which retains full and complete ownership of the same including after the completion of the Service. 10.3.3 The ordering or performance of the Service does not entail any express or implied transfer to the Client of the intellectual property rights attached to the Deliverable. Any transfer of intellectual property rights over the Deliverable must therefore be detailed in an express ad hoc agreement between the Parties setting out the respective terms and financial conditions. 10.3.4 Client’s right to use the deliverable To enable the Client to use the Deliverable on completion of the Service, ASA FRANCE grants the Client a limited right: to consult the Deliverable; to reproduce, fix, record and use the Deliverable by any technical means, known or unknown, on paper or digital media, in unlimited numbers, on a temporary basis; to translate the Deliverable; to communicate and disclose the Deliverable on a limited basis to its staff members or third parties who need to be familiar with the Deliverable for the purposes of the Service and as specified in the Technical and Commercial Proposal. These rights are granted to the Client on a worldwide basis, for the statutory limitation period applicable to legal actions pertaining to the Operation and in connection with the Service, and for the exclusive purpose of enabling the Client to carry out the Operation or to handle related claims. These rights are granted to the Client on a non-exclusive and non-transferable basis, as part of the cost of the Services indicated in Section 9.1. 11 Warranty / Liability 11.1 On completion of the Service, ASA FRANCE provides no warranty other than that the Service has been carried out in accordance with the Technical and Commercial Proposal. 11.2 Insofar as it is bound by a best-endeavours obligation with respect to the Service carried out, ASA FRANCE’s liability is limited to cases where it is directly and exclusively at fault and this can be proven by the Client. ASA FRANCE cannot be held liable under any circumstances for any harm or damage resulting, in whole or in part, from fault on the part of the Client, such as a breach of its obligations under Section 7 and, in particular, if Client Data is incomplete or erroneous, or in the event of unforeseeable circumstances or force majeure. 11.3 Any repairs for which ASA FRANCE may be responsible are limited to direct physical damage caused to the Client. Under no circumstances will ASA FRANCE be liable to pay compensation for economic or consequential losses, whether foreseeable or otherwise, including in particular: operating losses, loss of turnover, loss of profits, loss of opportunity, commercial harm, loss of earnings and/or reputational harm. ASA FRANCE’s total public liability (excluding cases where limitation of liability is excluded by public policy provisions) is limited to TEN (10) times the value of the Service and capped at ONE HUNDRED THOUSAND EUROS (€100,000) €. 11.4 In all circumstances, and unless otherwise stipulated by public policy, any action in liability brought against ASA FRANCE in relation to the performance of a Service, whatever the grounds for that action, must be brought within ONE (1) year of the operative event. 12 Insurance ASA FRANCE will take out a professional indemnity insurance policy covering all activities and obligations arising from the Service. ASA FRANCE must keep this policy in force throughout the duration of the Service and furnish proof of the insurance at the Client’s request, by providing a certificate from its insurers, listing the covers taken out, their amount and their period of validity. Any amendment, suspension, cancellation or termination of this insurance policy by ASA FRANCE for any reason whatsoever must be notified to the other Party as soon as possible. 13 Non-performance 13.1 ASA FRANCE may refuse to perform any of its obligations hereunder, even if that obligation is due, if the Client does not perform, in whole or in part, its obligation to pay for the cost of the Service in whole or in part, or breaches its duty of co-operation as set out in Section 7. The Client acknowledges that any such failures will be deemed sufficiently serious if they might jeopardise the continuation of the Service or fundamentally upset the economic balance. 13.2 ASA FRANCE may also raise this defence of non-performance as a preventive measure, in accordance with Article 1220 of the French Civil Code, if it is clear that the Client will not perform its respective obligations on the due date and the consequences thereof are sufficiently serious for the Party suffering the default. 13.3 Suspension of performance will take effect immediately when the Client receives the notification of default sent by ASA FRANCE (as the Party suffering the default) indicating the intention to raise the defence of non-performance for as long as the Client has not remedied the breach observed. The notification will be served by registered letter with acknowledgement of receipt or sent on any other durable written medium offering proof of sending. 14 Early termination 14.1 If one of the Parties fails to perform any of its obligations, especially payment of a sum of money within the payment periods granted, the other Party may, without prejudice to its other rights, send the defaulting Party a letter of formal notice, by registered mail with acknowledgement of receipt, mentioning the nature of the breach committed or the non-performance and informing the defaulting Party of its intention to terminate the contract corresponding to the Service if that breach or non-performance is not remedied. If the breach or non-performance is not remedied within THIRTY (30) days of receiving such notice, the contract may be terminated immediately, with notice sent by registered letter with acknowledgement of receipt, at the sole initiative of the Party that sent the letter of formal notice. 14.2 The contract drawn up in relation to the Service may be terminated automatically, by registered letter with acknowledgement of receipt, without prior notice, particularly in any of the following circumstances: (i) where the non-performance observed cannot be remedied by the obligor, particularly where the latter is permanently impeded from performing its obligation, (ii) where a force majeure events occurs as defined in Section 15, (iii) where an event occurs which makes ASA FRANCE’s involvement inappropriate or unsuitable, such as a conflict of interest or the need for technical expertise outside of its area of expertise, (iv) where insolvency proceedings are commenced against one of the Parties, in accordance with the applicable laws and regulations. 14.3 In all cases where the contract is terminated through the fault of one of the Parties, the non-defaulting Party will be entitled to obtain compensation for the harm suffered. 14.4 No action for a price reduction may be brought by the Client under the conditions set out in Article 1223 of the French Civil Code in the event of imperfect performance of the Service. 15 Force Majeure – Hardship 15.1 Force majeure 15.1.1 All events beyond the control of the Parties and which are unforeseeable and unavoidable pursuant to Article 1218 of the French Civil Code will be considered just reason for suspension of the Parties’ respective obligations and for exclusion of liability if they prevent the performance of those obligations in whole or in part. 15.1.2 It is also agreed that the following are considered force majeure events even if the requirements of being outside the parties’ control, unforeseeable and unavoidable set out in Article 1218 of the French Civil Code are not fulfilled in whole or in part: strikes by ASA FRANCE staff, fire, natural disasters, climate events (heatwave, frost), requisition, embargo, ban on currency transfers, insurrection, lack of means of transport, acts of terrorism, epidemics or pandemics, measures taken by any authority (in particular, an administrative or judicial authority) to reduce, suspend or stop the activity of one of the Parties or resulting in a reduction, suspension or partial or total cessation of the activity of one of the Parties. 15.1.3 Where a Party is prevented from performing its obligations by a force majeure event, it will (i) inform the other Party as soon as possible by any means and (ii) send written confirmation within FIFTEEN (15) calendar days of the date on which the event starts, providing all respective details and the likely consequences. 15.1.4 Upon the occurrence of a force majeure event as defined in this section, the performance of the prevented Party’s obligations will be suspended except for the payment obligations assumed by the Parties. 15.1.5 If the impediment lasts for more than NINETY (90) consecutive working days following the occurrence of the force majeure event, either Party may automatically terminate the contract in relation to the Service concerned, without having to pay compensation, under the conditions set out in Section 14.2. 15.2 Hardship ASA FRANCE and the Client each waive the right to invoke the provisions of Article 1195 of the French Civil Code and the hardship provisions contained therein (and consequently agree not to request a renegotiation of the contract in relation to the Service and of any associated contract in the event of a change of circumstances). The Parties agree to assume their obligations even if the contractual balance is upset by circumstances that were unforeseeable at the time of concluding the sale, even if their performance would prove excessively onerous, and to assume all resulting economic and financial consequences. 16 Personal data 16.1 For purposes related to the performance of the Service, ASA FRANCE collects personal data about the Client or its staff members (employees, workers, etc.) such as title, surname, first name, email address and telephone number, exclusively for business purposes. 16.2 Accordingly, ASA FRANCE acts as data controller. 16.3 Personal data processing: involves the collection, consultation, recording, organisation, structuring, use, storage, disclosure by transmission, erasure or destruction of personal data, and any other operation necessary for the performance of a Service; has as its legal basis the performance of pre-contractual and contractual measures in relation to a Service, for which the collection and processing of the aforementioned personal data is strictly necessary. 16.4 Personal data collected and processed will not be transmitted to any third party with the exception of subcontractors and partners in relation to the performance of the Services. 16.5 ASA FRANCE stores personal data for the period necessary for the operations for which it was collected and in compliance with current regulations, and subject to its binding legal obligations, in particular tax and accounting obligations justifying an archiving policy. 16.6 Any data subject whose personal data is collected by ASA FRANCE has a right of access to their personal data as well as the rights of rectification, restriction, portability, erasure, complaint and objection to processing. 16.7 The data subject may therefore demand that personal data that is inaccurate, incomplete, ambiguous or out of date be rectified, completed, clarified, updated or erased. Personal data will also be deleted when the data subject expressly withdraws their consent to the collection and processing of their personal data. The data subject may also, under the right to data portability, retrieve their data for their personal use or request that their data be transferred to a third party if technically feasible. They may also object on legitimate grounds to the processing of their data or give ASA FRANCE instructions on what to do with their personal data in the event of their death (such as deletion or transmission to their designated heirs). 16.8 The data subject can exercise these rights by contacting ASA FRANCE in the following ways: by email to the following address : firstname.lastname@example.org by post to the following address : ASA France, 58 Rue de Colombiers, 34670 Baillargues. 16.9 All data subjects have the right to lodge a complaint with the competent supervisory authority — in this case the CNIL (Commission Nationale de l’Informatique et des Libertés) — about the collection and processing of their personal data by ASA FRANCE APPENDIX TERMS AND CONDITIONS GOVERNING THE SALE OF SALVAGE GOODS As part of the survey Service carried out for an insurance client, ASA FRANCE may be authorised to organise the sale of damaged goods for and on the client’s behalf in order to minimise as far as possible the quantum of the damage sustained. The purpose of this Appendix is to set out the general terms and conditions applicable to the “salvage sales” services offered by ASA FRANCE.
- ASA FRANCE’S DUTIES IN RELATION TO « SALVAGE SALES»
ASA FRANCE sells for and on behalf of the Client any goods entrusted by the Client (“Goods”), in accordance with Articles 1984 et seq. of the French Civil Code, under the conditions set out in (i) the Technical and Commercial Proposal drawn up for that purpose, and (ii) this Appendix. It will be responsible, acting for and on behalf of the Client, for (i) searching for customers interested in purchasing the salvage Goods, (ii) organising a tender procedure, (iii) collecting and examining the tenders submitted, (iv) selling the Goods at the best price, (v) collecting payment of the selling price for the Goods.
The tasks entrusted to ASA FRANCE under Section 1 are not exclusive with the result that ASA FRANCE will be free to offer the same or similar services to any competitor of the Client.
- CONDITIONS GOVERNING THE SALE OF GOODS
ASA FRANCE will conclude the sale of Goods to the third party under the following conditions: 3.1 Call of tenders The sale of the Goods will be organised by ASA FRANCE on the principle of an invitation to tender, the procedure for which will be freely decided and managed by ASA FRANCE. 3.2 Prices The Goods will be invoiced by the Client or its insured to the buyer at the price indicated by the buyer in the tender. 3.3 Delivery Delivery of the Goods to the final buyer will not be carried out by ASA France but will take place at the expense and under the responsibility of the Client or the buyer. 3.4. ASA FRANCE’s liability It is agreed that ASA FRANCE, in its capacity as intermediary, will not at any time acquire ownership of the Goods that it is responsible for selling on the Client’s behalf or acquire the status of responsible food business operator according to Regulation (EC) No 178/2002. ASA France will not therefore be liable to the buyer in connection with the above and the Client will hold ASA FRANCE harmless from any action of any kind pertaining to the obligations of the seller of the Goods or to the Goods themselves, including reasonable costs incurred in its defence. Furthermore, if the Client is not the owner of the Goods, it declares that it holds all rights to organise the sale of the Goods under the conditions set out herein, and holds ASA FRANCE harmless from any liability in that regard.
Following the sale of the Goods, ASA FRANCE will send the Client :
- a report on the sale of the Goods;
- a statement detailing any expenses and costs incurred, as well as the sums received from third parties, providing any receipts or supporting documents at the Client’s request.
ASA FRANCE will transfer the sums to the Client or to its insured after the case has been closed and its fees have been paid.
- FINANTIAL TERMS AND CONDITIONS
5.1. Commission In return for the salvage Goods sold for and on the Client’s behalf, ASA FRANCE will be entitled to a proportional commission upon collection of the amount corresponding to the Goods sold. This commission will be based on the selling price of the Goods, excluding VAT, the rate of which will be indicated in the Technical and Commercial Proposal. 5.2. Costs The commission does not include any advances, costs and losses that ASA FRANCE may have incurred in carrying out the assigned tasks, in accordance with Articles 1999 and 2000 of the French Civil Code. Costs may be incurred by ASA France in carrying out the Service, including where the Goods do not find a buyer. These will either be paid in advance as a fixed amount specified in the Technical and Commercial Proposal, or reimbursed upon presentation of receipts or supporting documents. 5.3. Terms of payment ASA FRANCE will invoice the Client for the amount of its commission under Article L 441-9 of the French Commercial Code and that invoice will be settled under the conditions set out in Section 9.2 hereof. Payment of any sum owed by the Client to ASA France in relation to the selling of salvage Goods may be offset against the sums collected for and on the Client’s behalf, which the Client expressly accepts.
The mandate for the salvage sale of the Goods will expire upon completion of the tasks entrusted to ASA FRANCE, as defined by the Parties. However, if by the end of the tendering period specified in the invitation to tender, no sale has been concluded with a third party, either Party may terminate the mandate agreement by any written means sent to the other Party, with neither Party being required to pay compensation. The mandate will then be terminated with effect from the date on which that notification is received.
- NO STORAGE OF THE GOODS
The Goods will not be deposited with ASA FRANCE for the purposes of their sale, hence ASA FRANCE will not be responsible for storing or looking after the Goods. The Client must ensure that its insured, as owner of the Goods, agrees to take all necessary steps to store and look after the Goods. The Client’s insured alone will assume responsibility for loss or damage to the Goods howsoever caused. The Client’s insured will therefore be responsible for taking out a damage insurance policy to cover any damage to the Goods and the transportation process.
- DUTY OF SECRECY
At the express request of the Client or its insured, ASA FRANCE may be asked not to reveal to third parties the name of the owner of the Goods or their original value.