These general terms and conditions of sale (hereafter T&Cs) are the basis for business negotiations between the parties and apply irrespective of any clauses that may appear in the client's documents, and notably the client's general terms and conditions of purchase, over which these T&Cs prevail. The T&Cs set out all the general conditions and arrangements governing the delivery of the services ordered by the client from SB Yacht Design. The contractual relationship between the parties will be stipulated by the letter of engagement which sets out the specific conditions and arrangements for the delivery of the services commissioned by the client from SB Yacht Design. The client must firstly agree to these T&Cs for the letter of engagement to be valid. The client acknowledges that they have read these T&Cs when the letter of engagement is executed and expressly states that they unconditionally agree to them. In accordance with the provisions of article L 441-6 of the French Commercial Code, these T&Cs are systematically sent to any client who requests them from SB Yacht Design. Where a condition is not present in the T&Cs, such matters will governed by standard practice in the engineering, construction and industrial sector.
Clause 1 - definitions
"General Terms and Conditions of Sale" or "T&Cs" refer to this document.
"Letter of engagement" refers to the document drawn up by SB Yacht Design on the basis of all the written information provided by the client, with this information being considered to be accurate and complete; the letter describes the specific conditions and arrangements for the delivery of the services commissioned by the client from SB Yacht Design.
"Services" refers to the engineering or project management services commissioned by the client from SB Yacht Design.
"Client" refers to the beneficiary of the services.
"SB Yacht Design" refers to the company SB Yacht Design, SARL (limited liability company) registered on the Bordeaux Trade and Corporate Register under number 808 748 00012.
"Order" means the contract to purchase services from SB Yacht Design resulting from the client and SB Yacht Design signing the letter of engagement.
"Deliverables" refer to all the documents given to the client by SB Yacht Design.
"Party" or "parties" refer individually or collectively to the client and SB Yacht Design.
Clause 2 - Letter of Engagement
SB Yacht Design will draft its letter of engagement drawing on all the written and oral information provided by the client, with this information being considered to be accurate, complete and drawn up under the client's full and sole responsibility.
Clause 3 - Acknowledgement of receipt of the order
3.1 The contractual relationship between the parties will be formalised by the signing of the letter of engagement. The signature must include the handwritten wording bon pour accord (French for read and approved).
3.2 The client must firstly, expressly, fully and unconditionally agree to the T&Cs for the order to be valid. Otherwise, the undertakings made by SB Yacht Design to the client will be null and void.
3.3 Any order accepted by SB Yacht Design is firm and final.
Clause 4 - Price
4.1 SB Yacht Design's fees are net and exclusive of tax. They are calculated based on the number and level of experience of staff required for the order, and the level of expertise and responsibility needed. If relevant, travel, subsistence and accommodation expenses incurred when delivering the services will also be invoiced. VAT at the current rate will be added if applicable to the fees and disbursements.
4.2 The price of the services is stipulated in the letter of engagement, in line with a lead time set by the projected schedule in the letter of engagement.
Clause 5 - Down payment and payment for services
5.1 Unless otherwise agreed by the parties, the client must make a down payment to SB Yacht Design. The amount is listed in the letter of engagement.
5.2 Invoices are issued for the services delivered and prepaid expenses and as and when they are delivered and incurred. Unless otherwise agreed, invoices are issued on a monthly basis and they are payable upon receipt. The client undertakes to settle any invoice issued by SB Yacht Design within 15 days of the date of invoice, notwithstanding anything to the contrary in the letter of engagement.
5.3 If the parties agree to payment in instalments, the non-payment of any single instalment will automatically trigger, on the sole initiative of SB Yacht Design, the expiry of the term.
5.4 By law, any sum not paid by the due date or any payments that do not match the invoiced amount will automatically and without any formal notice lead to the payment of a late payment penalty calculated based on the European Central Bank's lending rate for its most recent refinancing operation, increased by 10 percentage points, and the payment of set compensation for recovery costs of €40. These penalties start on the day after the due date on the invoice and until the date when payment is made. Furthermore, SB Yacht Design will be justified in suspending delivery of the services until full payment of the unpaid invoice is received, without SB Yacht Design being held responsible for this failure to deliver the services.
5.5 The client is not authorized to retain or defer the payment of any amount owed to SB Yacht Design, even in the event of a dispute or complaint. Likewise, SB Yacht Design will not be bound to deliver the services commissioned by the client if the client does not pay the price in whole or in part, in accordance with the stipulated payment conditions and arrangements, without prejudice to any of its other rights and forms of action.
5.6 Delays or other unforeseen circumstances which are out of the control of SB Yacht Design may lead to additional fees being invoiced. SB Yacht Design undertakes to inform the client about these delays and/or problems as soon as they arise so that it can assess the repercussions with the client.
5.7 Any fees agreed by SB Yacht Design and the client necessarily imply that the client and SB Yacht Design must fulfil the obligations set out below.
Clause 6 - The parties' obligations
6.1 The undertakings made by SB Yacht Design constitute a best efforts obligation at the end of which the services will be delivered in strict compliance with current industry best practice and, where applicable, in line with the contractual conditions. In order to do so, SB Yacht Design will assign professionals with the required expertise to deliver the services so that they are delivered in line with its quality standards.
6.2 To facilitate the smooth delivery of the services, the client undertakes to (i) provide SB Yacht Design with comprehensive and accurate information and documents within the required timeframe, without SB Yacht Design having to check whether the information and documents are complete and accurate, (ii) take decisions within the timeframes and obtain the necessary approval from line management, (iii) appoint a representative with decision-making power, (iv) ensure that key contact people and the representative are available throughout the service delivery period, (v) directly advise SB Yacht Design about any difficulties relating to the delivery of the services.
Clause 7 - Amending the services
7.1 The client may ask SB Yacht Design to make changes to the services initially described in the letter of engagement, notably changes to plans and specifications. SB Yacht Design will advise the client as quickly as possible and at the latest seven days after the client's written request, of the new lead time for the letter of engagement and more generally about any other direct repercussions of these changes. SB Yacht Design will only implement the relevant changes after it has received the client's prior written agreement to the changes to the implementation conditions of the aforementioned contract.
7.2 In any case, services not listed in the contract will be paid for at a new price and in accordance with conditions to be agreed by the parties. In the case of flat fee services, SB Yacht Design will be entitled to suspend the delivery of the amending or supplementary services until a written agreement is reached by the parties. This agreement will take the form of an amendment to the letter of engagement.
7.3 If a client request involves changes that go against best industry practice, SB Yacht Design will be entitled to refuse to carry out these changes. In any case, SB Yacht Design may refuse to carry out the changes requested by the client if they contravene safety regulations.
Clause 8 - Service delivery arrangements
8.1 SB Yacht Design staff tasked with delivering the services on the client's premises will comply with the internal regulations and health and safety regulations in force on the aforementioned premises, unless the parties have agreed otherwise in writing.
8.2 In any case, SB Yacht Design staff assigned to deliver the services remain under the disciplinary and hierarchical authority of SB Yacht Design. SB Yacht Design exercises technical, management, administrative, accounting and industrial relations authority over its staff. SB Yacht Design hereby certifies that the employees who will deliver the services will be legally employed in compliance with the provisions of the French Labour Code. It is clearly stated that the SB Yacht Design staff will deliver the relevant services independently within the scope of the letter of engagement. SB Yacht Design remains completely independent of the client and guarantees that there is no subordinate relationship between itself and the client, nor between SB Yacht Design co-workers and the client.
8.3 SB Yacht Design reserves the right to transfer all or part of the service delivery to service providers who meet the same level of expertise and quality requirements, in particular if the services require specialist technical expertise. SB Yacht Design will advise the client about the possibility of sub-contracting some of the services. The sub-contractor will work solely under SB Yacht Design's responsibility and will undertake to keep confidential all the information of which it may become aware when delivering the services.
8.4 The service delivery lead time will be extended (i) if any delays are caused by the client, such as a delay in submitting plans, preparing the work site etc, (ii) if the delay is caused by other companies involved in the project (unless these companies have signed an agreement with SB Yacht Design), (iii) if changes are made while the services are being delivered.
Clause 9 - Acceptance of services
9.1 Unless otherwise stated in a written agreement between the parties, the client has 15 days starting from the date when one or more deliverable(s) are received to express any disagreement in writing. Once this timeframe has passed, the services will be regarded as having been duly delivered and no objections will be allowed. In this regard, the client agrees to regard any acknowledgement of receipt as proof of delivery, whatever the delivery format: direct, post, fax or email.
9.2 Acceptance of the services takes the form of an acknowledgement of receipt jointly signed once the letter of engagement has been fulfilled. Acceptance may be partial without waiting for the completion of the services covered by other agreements, batches or separate components within the same agreement. The setting in the letter of engagement of a different lead time for separate batches or components implies, unless otherwise stipulated, the partial acceptance of these separate batches or components as soon as they have been delivered.
Clause 10 – Intellectual Property
10.1 Each party will retain full ownership of the descriptions, software, plans, drawings and other documents, including all the deliverables and their own methods, know-how and software.
10.2 If action is initiated by a third party claiming that equipment or documents used when delivering the services infringe a patent or any other industrial or intellectual property rights, the party that has supplied the equipment or the documents in question will be solely responsible for defending and settling the claim and its financial consequences.
10.3 If any of SB Yacht Design's recommendations or the usage of elements delivered as a result of its guidance involves using goods that are covered by intellectual property rights belonging to a third party, SB Yacht Design will inform the client about the existence of these rights and the consequences of using them. The client will then be solely responsible for taking measures to enable these rights to be used, notably by negotiating on its own behalf the usage rights in such a way that SB Yacht Design is able to make use of them for the requirements of the services to be delivered.
10.4 For the requirements of the services, SB Yacht Design may use or develop software, including spreadsheets, documents, databases and other IT tools. In some cases, these resources may be made available to the client and upon the client's request. As these resources have been specifically developed to meet the needs of SB Yacht Design and without any consideration of the client's own needs, they are made available to the client throughout the term of the contract on an "as is" basis and without any guarantees attached, simply for usage purposes; they must not be distributed, shared or passed on to third parties, either totally or partially. This temporary provision will not entail any transfer of rights or guarantees, whatever the grounds, to the client or third parties.
10.5 SB Yacht Design retains all rights, titles and interest in (i) original elements appearing in the work, documents, memos, consultations, opinions, conclusions and other procedural acts produced within the framework of the services, including but not exclusively, any copyright, registered trademarks and any other linked intellectual property rights, (ii) all the methods, processes, techniques, developments and know-how incorporated or not in the services or that SB Yacht Design might develop or provide within the scope of the services.
10.6 With no geographical restrictions, royalty-free and irrevocably, the client can use in-house and during the copyright protection period the elements designed by SB Yacht Design and incorporated in its work. The client is forbidden from distributing, putting on sale, and more generally making available or granting use of these elements and more generally allowing third parties to use these elements without SB Yacht Design's agreement.
10.7 None of the parties may mention or use the name, company name, trademarks, logos or other commercial or other designations of the other party without the latter's prior written agreement. Notwithstanding the above, SB Yacht Design may make use of the name, company name, trademarks and logos of the client in the course of the contract as long as this is strictly necessary for providing the services, including in subsequent services proposals. Moreover, the client authorises SB Yacht Design, once the services have been delivered, to quote its name/company name as a reference and accompany this wording, where applicable, with a generic description of the services provided.
Clause 11 - Non-solicitation
Unless otherwise agreed by the parties, the client refrains from hiring or getting any current or future employee of SB Yacht Design who was involved in implementing the letter of engagement to work for them, directly or indirectly, by means of a third party or a subsidiary, even if the SB Yacht Design employee approaches the client. The non-solicitation period lasts the length of the service plus a period of 12 months. If the client fails to comply with this non-solicitation clause, the client undertakes to pay SB Yacht Design compensation equivalent to one year of the employee's gross pay, social security and similar contributions included, and to compensate SB Yacht Design for any other damages incurred in this respect.
Clause 12 - contract non-transferability
The letter of engagement signed by SB Yacht Design and the client is entered into on a personal basis, because of the latter's attributes. The client shall refrain from transferring all or some of the rights and obligations bestowed upon it by these T&Cs and the letter of engagement, in any form, in any way and to any person, unless SB Yacht Design's express written agreement is obtained. If the business is transferred to a third party, SB Yacht Design reserves the right to automatically cancel the letter of engagement, without any advance notification and without having to pay any kind of compensation.
Clause 13 - Early termination
13.1 In the event of a total or partial failure to perform, or poor performance or breach by either of the parties of the provisions of the T&Cs or the letter of engagement, which the party in question has not stopped within 30 days of receiving formal notice by recorded delivery signed-for mail, the other party may automatically cancel the letter of engagement without undertaking any legal formalities and without prejudice to any damages that they may claim.
13.2 If (i) the business is discontinued, (ii) the business goes into administration or liquidation, the party in question undertakes to inform the other party by recorded delivery signed-for letter within a week of these events occurring. A statement of the services delivered, down payments made, and the repercussions of the party's failure to perform, will be jointly drawn up.
13.3 If the client cancels the letter of engagement on grounds other than those listed in clauses 13.1 and 13.2, the client undertakes to adhere to a notice period of 30 days and compensate SB Yacht Design for all the amounts owed by the client under the terms of the letter of engagement until the date when the services were cancelled, and the costs incurred by SB Yacht Design in order to finish off these services. The client will inform SB Yacht Design about the decision to cancel by recorded delivery signed-for letter and in accordance with the procedure listed in clause 13.2.
13.4 Any down payments made by the client will be retained by SB Yacht Design, without prejudice to any other action or damages for which SB Yacht Design is entitled to start proceedings or claim against the client.
13.5 Any documents sent to the client while performing the letter of engagement must be returned to SB Yacht Design. The client is not allowed to keep any copies.
Clause 14 - Confidentiality
14.1 The parties are subject to a legal obligation of professional secrecy.
14.2 Throughout the service negotiation and delivery period, the parties undertake not to divulge or allow members of their workforce to divulge any information of any type, be it visual or oral, in any format, about the structure, organisation, business, internal policies, projects and staff of each of the parties, in any way, within the scope of the services, apart from to a third party which undertakes under the same conditions to keep confidential any document or information which needs to be divulged to it in order to deliver the services. The content of the services and the deliverables, reports, correspondence, information, memos, quotes supplied by SB Yacht Design when delivering the services are also classed as confidential. These documents are given to the client for strictly in-house usage and on the condition that they are not disclosed to third parties or appended to any document that the client may produce.
14.3 The above undertaking does not apply to information and documents that (i) have come into the public domain for any reason other than the breach of this clause, (ii) are already in the possession of the relevant party when handed over by the other party, and (iii) when, having been sent out by one party, these documents and information are received by a third party authorized to disclose them, (iv) must be produced when needed and solely to the courts and representatives of the tax and social administrative authorities, who are authorized to obtain them.
14.4 Subject to 14.3, the confidentiality obligation will be in force for five years after the services have been delivered. If the client wants all or part of these documents to be divulged to or used by a third party, the client must firstly request authorisation in writing from SB Yacht Design. Arrangements for the disclosure of the documents will then be made.
14.5 The client acknowledges and accepts that (i) unless the other party expressly requests otherwise, the parties can correspond and transfer documents by email via the internet, (ii) none of the parties can control the capacity, reliability, access to or the security of these emails, (iii) SB Yacht Design cannot be held liable for any loss, damage, costs or harm suffered by the loss, delay, interception, hijacking or alteration of any email caused by any act.
14.6 Subject to its confidentiality obligations, SB Yacht Design reserves the right to deliver services for the client's competitor companies.
Clause 15 - Guarantee and insurance
15.1 SB Yacht Design guarantees to the client that the services will be properly delivered, as per the letter of engagement and in accordance with best industry practice and best engineering practice.
15.2 Furthermore, SB Yacht Design undertakes, for a period of 12 months starting from the performance of the services, to take back at its own cost the services or parts of the services that may prove defective. SB Yacht Design cannot be held liable for any failings when delivering the services if these failings are the result of errors, omissions and inaccuracies affecting the information and specifications provided by or on behalf of the client to SB Yacht Design. The guarantees given under the terms of this document are the only guarantees applicable to SB Yacht Design covering the services and prevail over any other guarantees, apart from the legal guarantees. The client expressly renounces any other express or implicit guarantees.
15.3 SB Yacht Design undertakes to take out all the necessary insurance at an adequate level of cover with an insurance company known to be solvent to cover the liability to which it is exposing itself when performing the letter of engagement.
Clause 16 – Limitation of liability
16.1 SB Yacht Design and its co-workers cannot be held liable for damage resulting from errors in documents or information provided by the client, particularly if SB Yacht Design has expressed prior reservations about the errors.
16.2 SB Yacht Design's overall liability under the terms of this agreement is limited to any direct material damage caused to the client resulting from duly proven mistakes made by SB Yacht Design. Under no circumstances can SB Yacht Design be obliged to compensate intangible damage, whether or not it results from tangible damage, such as operating losses, production losses, lost income, lost profit, lost contracts, loss of reputation, missing out on an opportunity, commercial harm, additional production costs, staff and equipment being immobilised, and any indirect damage or the financial repercussions of any action taken by third parties against the client.
16.3 Moreover, SB Yacht Design cannot be held liable in the following circumstances (i) following a breach or failure to supply a product or deliver a service when the supply or delivery is not SB Yacht Design's responsibility, nor that of any potential sub-contractors, (ii) for events and/or information not included in the scope of the services and/or that are not an extension of it, (iii) if the outcomes of the services are used for a purpose or in a context that differs from the one in which SB Yacht Design worked, if recommendations are incorrectly implemented, or if SB Yacht Design's reservations are not taken into consideration.
16.4 In any event, SB Yacht Design's total overall liability under the terms of the letter of engagement shall not exceed 20% of the amount exclusive of tax of the letter of engagement, regardless of the number of legal proceedings, grounds invoked, or parties to the disputes. This stipulation does not apply to liability for death or personal injury, or any other liability that cannot be excluded or limited in law.
16.5 The client and its insurers, whose compliance the client guarantees, state that they will not seek any recourse against SB Yacht Design and its insurers above and beyond the limits and exclusions set out above.
Clause 17 - conflicts of interest - independence
17.1 The performance of the services does not under any circumstances lead to a de facto agency or trading partnership relationship. Neither of the parties is authorized to engage or bind the other party, unless authority has been expressly delegated.
17.2 In the event of there being a conflict of interest or an issue of independence while the services are being delivered, SB Yacht Design will immediately inform the client about the matter and will work with the client to seek the most appropriate solution in line with the applicable rules. More specifically, if a change to regulations or professional standards were to prohibit SB Yacht Design from continuing to deliver its services, it will make available to the client the result of the services and all the documents needed to finalize them, including documents on an "as is" basis, in order to facilitate a third party continuing with the work.
Clause 18 - Force majeure
The performance of the obligations incumbent upon each of the parties under the terms of these T&Cs will be suspended when a force majeure event, in the usual sense of the term, takes place, including but not exhaustively, natural disasters, measures taken by the public authorities, embargos, strike action, exceptional weather conditions preventing delivery, uprisings, and riots. The party wishing to invoke such an event must immediately advise the other party that the event has started and subsequently, where applicable, that the force majeure event has ended, otherwise, the party cannot be relieved of its responsibility. The other party reserves the right to verify the reality of the situation. The two parties will make every effort to prevent or mitigate the effect of a failure to perform caused by this event. The fulfilment of obligations will return to normal as soon as the force majeure event ends. If the event that has led to a case of force majeure lasts longer than one month, the party that has been notified about the force majeure event can immediately and automatically cancel the letter of engagement without any penalty.
Clause 19 – Personal data protection
Each party undertakes to comply with data protection law as defined by the amended French data protection law number 78-17 of 6 January 1978 and its implementing regulations. Each party may in particular make a written postal request to the other party to correct or delete its personal data. With regard to the data handled by SB Yacht Design, the client is advised that this data is exclusively used to deliver the services.
Clause 20 - translation - language of the letter of engagement
If the T&Cs and the letter of engagement are written in several languages, it is expressly understood that the French version is the only legally binding version, particularly if there are interpretation difficulties and/or difficulties applying the provisions of these T&Cs and the letter of engagement. The language applicable to the T&Cs and the contract is French.
Clause 21 – Claims and disputes
21.1 All claims, whether out-of-court or court-imposed, relating to the performance of the services must be made within a year of the services being completed.
21.2 The T&Cs and letter of engagement are subject, both for interpretation and implementation purposes, to French law. All disputes that may stem from the T&Cs and the letter of engagement, in terms of their validity, interpretation, performance, termination, consequences and outcomes, will be exclusively settled by Bordeaux Commercial Court, even third-party complaints and multiple defendants, unless they can be settled out of court.