General Terms and Conditions of Sale - Provision of Services

1. OBJECT

The purpose of these general terms and conditions of sale is to define the terms and conditions of the provision of intellectual services (hereinafter: the "Services") by the provider: NEVERHACK (hereinafter the "Provider") for the benefit of the purchaser (hereinafter the "Client"), together the "Parties", identified in the specific terms of sale established by the Provider (hereinafter the "Proposal"). They constitute, with this proposal, an inseparable contractual whole (hereinafter: the "Contract").

These general terms and conditions of sale complement and apply, if applicable, to all proposals signed and/or to all specific terms of the Provider and/or to all purchase orders established by the Client and duly accepted by the Provider.

2. THE SERVICES

The Services include everything explicitly listed in the "Nature of the Service" field in the Proposal. Conversely, they do not include what is not explained in this same field.

3. ACCEPTANCE OF PROPOSAL AND GENERAL CONDITIONS

3.1. Proposal

A Proposal is established before any performance of the Services.

It describes all the Services that the Provider commits to perform for the Client.

Unless otherwise stated in the Proposal, any proposal issued by the Provider is valid for 1 (one) month from its issuance. Failing validation by the Client within this period, the Proposal will be null and void.

The Proposal may be validated by any means, express or implied. For example, any commencement of performance of the Services by the Provider to the Client constitutes tacit acceptance of the Proposal by the Client.

3.2. Acceptance of general conditions

Any validation of the Proposal, express or implied, implies full acceptance of these general terms and conditions of sale, in their version in effect at the date of acceptance of the Proposal.

These general terms and conditions of sale are intended to govern the contractual framework of the Services. Therefore, any acceptance of the general terms and conditions of sale with reservation is considered null and void and cannot allow the formation of a contract.

The Client who does not accept to be bound by these general terms and conditions of sale must not order Services from the Provider.

4. PRICING

4.1. Unless otherwise agreed, prices are established in euros excluding taxes and are understood for Services performed during the legal hours in force in France, excluding Saturdays, Sundays, and public holidays. Services carried out outside of working hours (overtime, shift or on-call work) will be increased.

The Services are provided at the Provider’s rates in effect on the day of order placement, according to the estimate previously established by the Provider and accepted by the Client.

The conditions for determining the cost of services whose price cannot be known a priori nor indicated with accuracy, as well as the method for calculating the price to verify it, will be communicated to the Client or will be the subject of a detailed estimate at the Client's request in accordance with the provisions of Article L441-1, III of the Commercial Code.

4.2. For Services performed outside French territory, prices do not include taxes, deductions, rights, and local taxes affecting the Provider, its property or its staff. The Client will bear these taxes, deductions, rights, and local taxes by taking them directly at their expense or reimbursing the Provider upon presentation of proof.

Accommodation and travel expenses outside the execution site will be invoiced under the conditions provided for in these general terms and conditions of sale under the clauses "travel" and "Hosting of Services". Transport time is considered as working time.

The amount of the Services is defined in the Proposal.

No discount, rebate, or reduction will be granted by the Provider outside the Proposal.

No discount will be granted by the Provider for early payment unless specific conditions are specified in the Proposal.

5. EXECUTION DATES OF SERVICE

The execution dates of the Services are defined in the Proposal.

6. WITHDRAWAL PERIOD

The right of withdrawal is governed by Article L221-3 of the Consumer Code. It applies if all of the following conditions are met:

1. The contract must be concluded off-premises.
2. The subject matter of the contract must not fall within the Client's main area of activity.
3. The number of employees employed by the Client must be less than or equal to five.

If the above conditions are met, the Client may withdraw within 14 days from the conclusion of the contract.

The exercise of this right is subject to the commencement of the execution of the Services, in which case, the Client's right of withdrawal will no longer be applicable.

7. CONDITIONS FOR CANCELLATION OF SERVICES INCLUDED IN A PROPOSAL

If the Client wishes to cancel the Services before their execution, for any reason, they must justify their request to the Provider. In case of agreement between the Parties on the cancellation, the Client agrees to pay the Provider, by invoice:

1. A zero amount within the legal withdrawal period under the conditions defined in Article L221-3 of the Consumer Code;
2. A zero amount more than two months before the start of the Services;
3. After the two-month period, an amount equal to 10% (ten percent) of the Proposal to cover the costs of preparing the mission and compliance with the associated logistics;
4. An additional penalty of 10% (ten percent) of the total amount of the Services when the cancellation occurs less than 5 (five) working days before the start of the Services.

8. MODIFICATIONS TO SERVICES

Any modification of the Services must be the subject of an amendment to the initial Proposal.

Modifications to the Services are in particular those that would result from a change in the conditions of performance and/or in the content of the Services, such as but not limited to: technical changes decided by the Client - delay of the Client in the provision of input data - incomplete or inaccurate input data - schedule acceleration - disruption of work due to the Client or its subcontractors, etc.

In case of a specific request from the Client concerning the conditions for providing the Services, duly accepted in writing by the Provider, the related costs will be subject to a specific supplementary invoicing, based on a quote previously accepted by the Client.

9. REGIME OF UNFORESEEN CIRCUMSTANCES

The legal regime of unforeseen circumstances provided for in Article 1195 of the Civil Code will only apply, for Services subject to these general terms of sale, to events or circumstances affecting more than 1,000 (one thousand) euros representing a variation of more than 5 (five) % compared to the price of the Services.

10. CONDITIONS FOR INTERRUPTING SERVICES

If the Client wishes to interrupt the Services in progress, for any reason, they must inform the Provider by registered mail and justify their request in writing.

The interruption of the Services can only take place by agreement between the Parties formalized in an amendment to the initial Proposal.

In addition, in case of interruption accepted by the Provider, the Client agrees to:

1. Respect a notice period of at least 1 month called "Notice of interruption of Services", between acceptance of the interruption by the Provider and the effective interruption of the Services. The Client may exempt the Provider from performing activities during this period. In the event of exemption from the execution of Services during the notice period, the Client continues to pay the Provider for the Services that would have been performed during this period;
2. If part of the Services has been performed, to pay the Provider the actual price of the Services already performed plus a flat-rate compensation corresponding to 20% (twenty percent) of the amount of the rest of the Services concerned by the Proposal;
3. Or if the Services have been started but not finalized: the price will be calculated by applying the following pricing: the daily rate (TJ) applicable under the framework agreements or specified in the Proposal, any half-day started being due, plus a flat-rate compensation corresponding to 20% (twenty percent) of the amount of the remaining canceled Services concerned by the Proposal.

11. EXCEPTION FOR NON-PERFORMANCE

It is recalled that under Article 1219 of the Civil Code, each Party may refuse to perform its obligation, even if it is due, if the other Party does not perform theirs and if this non-performance is sufficiently serious, i.e., likely to call into question the continuation of the contract or fundamentally disrupt its economic balance.

The suspension of performance will take effect immediately upon receipt by the defaulting Party of the notification of breach addressed to it to this effect by the Party victim of the breach indicating the intention to apply the exception for non-performance until the defaulting Party has remedied the identified breach, notified by registered letter with request for acknowledgment of receipt or on any other durable written medium allowing proof of sending to be preserved.

This exception for non-performance may also be used as a preventive measure, in accordance with the provisions of Article 1220 of the Civil Code, if it is clear that one of the Parties will not perform the obligations incumbent upon it when due and the consequences of this non-performance are sufficiently serious for the Party victim of the breach.

This ability is used at the risk and peril of the Party initiating it.

The suspension of performance will take effect immediately upon receipt by the presumed defaulting Party of the notification of the intention to apply the preventive exception for non-performance until the presumed defaulting Party performs the obligation for which a forthcoming breach is evident, notified by registered letter with request for acknowledgment of receipt or on any other durable written medium allowing proof of sending to be preserved.

12. CLIENT'S OBLIGATIONS AND RESPONSIBILITIES

The Client is informed and accepts that the Services require their involvement and cooperation. Consequently, they undertake to provide the Provider with all the documents, elements, data, and information finalized and validated, necessary and more generally, to actively cooperate with the Provider to ensure the proper execution of the Services.

The Client is solely responsible for the documents (including spelling), elements, data, and information they provide to the Provider. The Client also ensures that they have all the rights and authorizations necessary for the use of all creative text and image elements provided by them to the Provider in the context of the Services, and guarantees the Provider against any third-party complaint related to the violation of the rights of these elements.

The Client is informed of their obligations regarding legal notices to be applied to the various media created during the Services. The Provider will request this information as soon as possible during exchanges and will not be held responsible if the Client does not provide it to them, nor for any delays in the delivery of the Services in case the Client provides them late.

13. PROVIDER'S OBLIGATIONS AND RESPONSIBILITY

The Provider undertakes to deliver the Services diligently and according to professional standards.

The Provider undertakes to keep strictly confidential the documents, elements, data, and information it may receive in the context of the Services and to not disclose them without the prior agreement of the Client.

This obligation does not extend to documents, elements, data, and information:

1. contained in the documents created as part of the Services, once they have been made public and officially released;
2. that the Provider already had knowledge of;
3. that were already public at the time of their communication or became so without violating this agreement;
4. that were received from a third party in a lawful manner;
5. whose communication is required by judicial authorities, under laws and regulations, or in order to establish a party's rights under the Contract.

14. FORCE MAJEURE

The Provider's liability cannot be engaged if the non-performance or delay in performing one of its obligations described in these general terms and conditions of sale is due to a case of force majeure. In this respect, force majeure means any external, unforeseeable, and irresistible event within the meaning of Article 1218 of the Civil Code.

15. INTELLECTUAL PROPERTY

The intellectual property of the deliverables created by the Provider and strictly defined in the Proposal and the specification of the Services is transferred by full right as soon as the Client has settled the associated invoice. Between delivery and the settlement of the Services, the Client has a limited right of use with the explicit agreement of the Provider.

The Provider retains ownership of all intellectual property rights over any preparatory work and tools that are not mentioned in the Proposal or the Service specification (e.g., studies, drawings, models, prototypes, etc.), and which have been made (even at the Client's request) for the provision of the Services to the Client. The Client is therefore prohibited from reproducing or exploiting these works without the express, written, and prior authorization of the Provider, which may condition it on financial compensation.

16. CONFIDENTIALITY OBLIGATION

Each Party undertakes to keep strictly confidential the information identified as such belonging to the other Party, of which they became aware during this contract, and to use them only within the framework of the execution of the contract. This obligation applies to the staff of each of the Parties assigned to the execution of the Services.

The Parties undertake to respect the confidentiality of this information and undertake in particular to:

1. take all technical and organizational measures to preserve the confidentiality of the other Party's confidential information;
2. not to use them in any context other than that of the execution of the contract, except with the prior agreement of the issuing Party and only to communicate the said confidential information of the other Party to staff members who need to know it;
3. not to communicate them to a third party, including their own subcontractors, directly or indirectly, without the prior agreement of the issuing Party.

It is expressly agreed between the Parties that the Receiving Party may not, under any circumstances, invoke any license right or any copyright on the basis of the confidential information communicated by the Issuing Party, except as otherwise provided in this contract.

17. EXCEPTION TO THE CONFIDENTIALITY OBLIGATION

The above commitments will not apply to information for which the Receiving Party can prove in writing that they:

1. were accessible to the public at the time of their communication or have subsequently become so without any fault or negligence on their part,
2. were already in their possession prior to their communication,
3. were communicated to them in good faith by a third party not subject to a similar confidentiality obligation.

18. NO SOLICITATION OF THE PROVIDER'S STAFF

The Client is prohibited from hiring on an employment contract, social mandate, service contract, or working in any form whatsoever, any employee of the Provider who participated in the performance of Services for the Client.

This clause applies regardless of the specialization of the collaborator in question.

This clause will have effect throughout the execution of this contract and for five (5) years after its expiration.

However, the Client may hire or have one of the Provider's employees work, subject to a written agreement between the Parties stipulating:

1. a waiting period of 18 months between the end of the Services and the hiring of said collaborator,
2. the collaborator of the Provider being the subject of a recruitment request by the Client,
3. the payment of financial compensation equivalent to €50,000 by the Client to the Provider.

19. END OF SERVICES

In the absence of reservations or complaints expressly made by the Client during the receipt of the Services, they will be deemed to comply with the order and the Proposal, in quantity and quality.

The Client will have a period of 10 days from the provision of the Services to make such reservations or complaints, in writing, with all related justifications, to the Provider.

No claim will be validly accepted in case of non-compliance with these formalities and deadlines by the Client.

The Provider will reimburse or compensate the Client (to the extent possible) as soon as possible and at their expense, according to appropriate and agreed upon methods with the Client, the Services whose non-compliance has been duly proven by the Client.

20. WARRANTY AND NON-COMPLIANCE MANAGEMENT

The Provider guarantees, in accordance with legal provisions, the Client, against any non-compliance of the Services and any hidden defect, resulting from a design or provision defect of the said Services, excluding any negligence or fault of the Client.

The Provider's liability can only be engaged in case of proven fault or negligence and is limited to direct damages excluding any indirect damage, of any kind whatsoever.

In order to assert their rights, the Client must, under penalty of forfeiture of any action relating to it, inform the Provider, in writing, of the existence of the defects within a maximum period of 1 month from their discovery. They must provide all justification as to their reality.

The Provider will rectify or cause to be rectified, at their exclusive expense, according to appropriate and agreed upon methods with the Client, the Services deemed defective.

In any case, if the Provider's liability were to be retained, the Provider's warranty would be limited to the amount excluding taxes paid by the Client for the provision of the Services.

The warranty for the Services only concerns the elements mentioned in the contractual elements "Nature of the Service" of the Proposal and does not concern any elements that may have been added in addition and are not the subject of a written mention in a Proposal.

21. INVOICES AND PAYMENT TERMS

Unless an additional payment period is agreed between the two Parties and specified on the invoice, payment is due no later than the 30th day following the billing date, even in the event of a claim. Payments shall be made in cash and without discount.

Late payment penalties shall apply at an interest rate corresponding to the semi-annual refinancing rate (refi) of the European Central Bank (ECB), in effect on January 1 or July 1, increased by 15 points.

Any delay in payment of more than 60 days from the date of issuance of the invoice, of all or part of an amount due to the Provider on its due date will automatically result in the immediate suspension of ongoing Services until full payment of all amounts due.

Additional compensation may be claimed, with proof, if the recovery costs incurred exceed the amount of the fixed compensation. Late penalties are due without the need for a reminder, as of the first day of delay.

The Provider will send its invoices, in two original copies and by any means giving a certain date to its sending, to the Client's representatives.

Each invoice will clearly show the legal mentions and in particular:

1. The name and address of the Client,
2. The number of the service contract,
3. The billing date,
4. The clear indication of the services performed with the detail, if applicable, of the quantities and unit prices invoiced,
5. The amount excluding VAT of the services due,
6. The rate and amount of VAT,
7. The total amount including tax to be paid by the Client.
8. The Client's and the Provider's VAT identification numbers.

Payment will be made by bank transfer (RIB provided on request and recalled on each invoice) or by check payable to NEVERHACK. The Provider's bank details (BIC-IBAN) will be mentioned on each invoice.

22. EXPORT CONTROL

The Provider undertakes not to transmit or give access to third parties, including the Client's group companies, to elements subject to export control by applicable export control laws and regulations, including those enacted by France, the United States, and the European Union, without prior written agreement between the Client and the Provider. Such agreement is subject to the prior written identification by the supplier of the various elements subject to export control, accompanied by the precise classification of these elements under European Union laws (i.e., classification according to the European list of dual-use goods or classification according to the military equipment list adopted by member states) as well as, if these elements are of American origin, specific classification under American laws (i.e., ECCN number or USML category). The Supplier will be responsible for obtaining, before any transmission to the Client, the necessary export authorizations and licenses for their transmission and use by the Client, and their own clients or subcontractors or by any Affiliate or other end-user specified by the Client to the Provider. The Provider will inform the Client of the scope of these export authorizations or licenses and any associated restrictions.

23. PERSONAL DATA PROTECTION

The personal data collected from the Client is subject to computerized processing by the Provider. They are recorded in its customer file and are indispensable for processing its order. This information and personal data are also kept for security purposes, to comply with legal and regulatory obligations. They will be kept as long as necessary for the execution of orders and any applicable guarantees.

The data controller is the Provider. Access to personal data will be strictly limited to employees of the data controller, authorized to process them due to their functions. The information collected may be communicated to third parties linked to the Provider by contract for the performance of subcontracted tasks, without the Client's authorization being necessary.

In the context of their performances, third parties have only limited access to the data and are obliged to use them in compliance with the provisions of the applicable legislation on the protection of personal data. Except in the cases mentioned above, the Provider refrains from selling, renting, assigning, or giving access to third parties to the data without the Client's prior consent, unless compelled by a legitimate reason.

If the data are to be transferred outside the European Union, the Client will be informed, and the guarantees taken to secure the data (for example, adherence of the external provider to the "Privacy Shield", adoption of standard protection clauses (BCR or CCT) validated by the CNIL, adoption of a code of conduct, obtaining CNIL certification, etc.) will be specified to them.

The provider undertakes to inform the client as soon as possible of any personal data breach and to apply the provisions of Articles 33 and 34 of the GDPR.

In accordance with applicable regulations, the Client has the right of access, rectification, erasure, and portability of data concerning them, as well as the right to object to processing for legitimate reasons, rights which they may exercise by contacting the data controller at the following postal or email address: DPO Immeuble le Follow, 2 rue des près 78280 GUYANCOURT / dpo@neverhack.fr.

24. COMPLIANCE AND ETHICS

The Provider and the Client declare and guarantee full compliance with the laws and regulations applicable to these and, in particular, those relating to fundamental freedoms and rights of the individual, social and labor regulations, or environmental regulations, anti-corruption measures, compliance with competition law, and other business ethics principles, whether of conventional dimension (company agreements, industry agreements, collective agreements), national, European or international.

The Provider and the Client undertake to respect the principles set out in the United Nations Global Compact. Furthermore, the Provider and the Client refrain from contravening a fundamental right established by an international convention to which France has adhered and from contravening, in any way whatsoever, the applicable regulations in the country where the Services would be performed.

25. TRAVEL

If the Provider's employees need to travel for the Client outside the usual site of the Services referred to in the Proposal, the travel amount will be re-invoiced to the Client at actual cost upon presentation of supporting documents (train, plane tickets, mileage, accommodation, etc.). Each trip must be organized in agreement between the Client and the Provider.

The Provider's travel policy is available for consultation.

The main elements are provided in these general terms of sale:

1. The mileage allowance application coefficient is 0.375€/km
2. Train travel < 2h: 2nd Class Ticket
3. Train travel > 2h: 1st class ticket
4. Hotel 3***
5. Meal expenses:
6. Morning: €10 excluding taxes
7. Midday: €50 excluding taxes
8. Evening: €75 excluding taxes

Travel-related costs will be re-invoiced to the client with a 7% markup for management, orders, and service charges.

26. SERVICE HOSTING

The Provider can host the Client's staff in its premises for service delivery.

Hosting services in the Provider's premises include:

1. Physical infrastructure: workspace, desk, chair, amenities (toilets, showers, dining area).
2. Dematerialized infrastructure: data servers, application servers, data and access security system.
3. Standard logistics: PCs, screens, keyboards, mice, printer.
4. Civil Risk Insurance.

The Provider will invoice the Client by daily token corresponding to the elements listed above for a working day from Monday to Friday and per seat.

1. Hosting token: €20 excluding tax

Excluded from this pricing grid are all unlisted elements specific to the Services. These elements will be subject to additional and specific pricing in the Proposal.

If Client-owned goods are stored, the Client must take out specific civil liability and material damage insurance and provide a duplicate of the guarantees to the Provider.

Hosting does not include IT logistics.

27. LOGISTICS

As part of on-site or off-site service, the Provider may be required to provide the IT logistics dedicated to the Services.

This logistics complies with the Client's security regulations.

This logistics includes two options:

1. Office-type PC with Office 365 license (Word, Excel, PowerPoint, Outlook);
2. Configuration example: Laptop - I5, 8GB RAM, SSD256
3. Development-type PC with Office 365 license (Word, Excel, PowerPoint, Outlook);
4. Configuration example: Laptop or tower – I7, 32GB RAM, SSD512

The options are provided with one (1) screen, one (1) keyboard, and one (1) mouse.

These two options are provided without specific software whose license cost will be communicated in the special conditions and the Proposal:

1. Standard PC: €10 excluding taxes
2. Development PC: €15 excluding taxes

PCs are provided with security equipment: antivirus, firewall, anti-spam, updates.

The provision of specific logistics or infrastructure (dedicated servers, security equipment, redundancy: non-exhaustive list) will be re-invoiced to the Client based on a specific quote in the Proposal.

Transportation of Client's material on the Provider's site can be handled by the Provider, which will re-invoice the associated logistics and insurance costs for the transportation of goods. Re-invoicing will be done by applying a 7% markup over actual costs for transport management.

28. DUTY AND NON-WORKING HOURS (NWH)

Duty:

Duty corresponds to a period during which the Provider must be available to perform work for the Client. The on-duty Provider is not required to be at the usual execution place of the Services or at the permanent and immediate disposal of the Client.

NWH:

Activities may be carried out by the Provider during so-called "non-working" hours ("NWH") and accepted in the Proposal.

The NWH time slots are defined below:

Week NWH: between 8 p.m. and 6 a.m. Monday to Friday,

Weekend NWH: from 8 p.m. Friday evening to Monday morning 6 a.m.

Duty and NWH pricing:

Increase:

Duty: 150% of the Daily Rate defined in the Proposal.

Week NWH: 150% of the Daily Rate defined in the Proposal.

Weekend NWH / Saturday (from Friday 8 p.m. to Saturday midnight): 150% of the Daily Rate defined in the Proposal.

Weekend NWH / Sunday (from Sunday to Monday 6 a.m.): 200% of the Daily Rate defined in the Proposal.

These general terms and conditions of sale and the operations resulting from them are governed by French law.

They are written in French, the language of the contract. In case they are translated into one or more languages, only the French text shall prevail in the event of a dispute.

Any dispute relating to the interpretation and execution of these general terms and conditions of sale is subject to French law.

In the event of a dispute, the Client, if a private individual, will have the possibility of resorting free of charge to a consumer mediator.

Failing amicable resolution, the dispute will be brought before the Commercial Court of Nanterre.

If any provision of these general terms and conditions of sale is invalid under mandatory legal rules, or declared as such by the final decision of a competent court, the other provisions will nevertheless retain all their force and scope.

30. GENERAL PROVISIONS

The Provider is authorized to state, for the purpose of its communication, the Services provided to the Client and the Client's name in general terms, excluding confidential information and unless otherwise indicated in writing by the Client.

The Provider has the right to assign or transfer all or part of the Contract to any company in the group to which the Provider belongs within the meaning of Article L233-3 of the Commercial Code.

31. ENTRY INTO FORCE

These general terms and conditions of sale came into force on 02/15/2024.