General conditions for the provision of services of eSST SA as at 22.11.2019
eSST SA is a limited liability company with a capital of € 180,000, registered RC B202987, NACE code 74.900 (Commercial activities and services), establishment authorisation no. 10137412/0, training organisation authorisation no. 10137412/1 and with an intra-Community VAT number of LU32633359
The headquarters of eSST SA is located at 49 rue Gabriel Lippmann, L-6947 Niederanven (Luxembourg).
eSST SA provides services of the type : safety and health advice at work as well as in human resources, audit, assistance at home or in the workplace, support and coaching. The missions fall within the scope of Art. L. 312-3 (3) of the Labour Code: if the skills in the company or institution are insufficient to organize these prevention activities, the Employer must use skills (persons or services) from outside the company or institution.
Training services are subject to specific general terms and conditions of sale as set out below.
- Provider: is the legal entity that has received an order for a service from an identified client to carry out a mission at its service.
- Customer: is the legal or natural person whose legitimate representative gives his agreement for the performance, on his behalf, of a service offered by the service provider.
- Provision: mission entrusted by the client to the service provider within the framework of an agreement between the two parties including implementation terms and financial conditions.
- Consultant: is the person appointed by the service provider to carry out the service ordered by the client.
- Controller: a natural or legal person who determines the purposes and means of the processing, as defined in Article 4 of the DGPS. In the context of this contract, it will always be the customer who has subscribed to this service.
3. Purpose and scope
These General Terms and Conditions for the Sale of Services, hereinafter referred to as the GTC, constitute the agreement governing the relationship between the company and eSST SA and its customers in the context of the sale of services during its term.
In the absence of a contract between the service provider and his client, the services provided are subject to the General Terms and Conditions of Sale described below. Any order placed and any contract concluded with one of the service provider’s consultants implies full and complete adherence by the customer to these GTCs without reservation.
The fact that the claimant does not implement one or other clause in his favour in these conditions cannot be interpreted as a waiver on his part.
4. Quotation and order
The service provider intervenes at the express request of the customer. A contractually binding offer is made for any service. The quotation sent by the service provider to the client, precise:
- The nature of the service,
- The price of the service excluding taxes,
- The amount of any discounts and rebates,
- Payment terms,
- The planning detailing the actions and obligations of the client and the service provider, as well as the deadlines for completion,
- Reminding the client’s full and complete membership to the GTCSs.
To confirm his order in a firm and definitive way, the customer must return this offer to us without any modification:
- Oither by post, duly signed and dated with the mention «Bon pour accord» of the person legally responsible as well as the commercial stamp,
- Either by electronic mail with the expression of the client’s consent.
The order will only be validated after the return of the offer valid as a contract, accepted and signed, accompanied by the payment of the deposit, if any requested.
A failure to receive the customer’s agreement and the down payment, or from the date of expiry of the quotation, the quotation proposal is considered as cancelled and the service provider reserves the right not to start his service.
5. Nature of obligations
The client shall scrupulously respect Art. L. 312-3 (4) of the Labour Code, namely:
- In the event that the employer calls upon such skills, the persons or services must be informed;The employer’s knowledge of known or suspected factors that may have an impact on the safety and health of employees “
- “Persons or services must have access to the information referred to in Art. L.312-6 of the Labour Code[and in particular the risks to safety and health as well as protection and prevention measures and activities, first aid measures, firefighting and prevention;éEvacuation of employees, list of workplace accidents that resulted in a higher work disability for the employee than 3 days, reports of workplace accidents to which employees were victim].
The service provider draws the client’s attention to paragraph 3 of Article L. 312-1 of the Labour Code, i. e. “i. ” if an employer calls, pursuant to Article L. 213-3 paragraph 3 to skills (persons or services) outside the company / establishment, this does not relieve it of its responsibilities in thisdomain. eSST provides advice for information purposes only, it is the employer’s responsibility not to limit itself to a single source of data.
6. Commitments and responsibilities
Considering the nature of the services provided, the obligation of the provider is an obligation of means. The service provider undertakes to provide the services in accordance with the rules of art and in the best possible manner, under the terms and conditions of the agreement, as well as in compliance with the applicable legal and regulatory provisions.
The client undertakes to provide the service provider with all the information and documents required for the proper performance of the service and a good understanding of the problems raised by the service provider within the agreed deadlines
The client is committed to
- Respect the dates and times of the appointments fixed for the correct operation of the subscribed device: any action not honoured but not ordered within forty-eight (48) hours preceding the date of its completion remains due to the service provider. The subsequent completion of this action will result in its payment in addition,
- Every effort should be made to plan the actions cancelled with forty-eight (48) hours’ notice within a time frame consistent with the proper functioning of the system.
The liability of the service provider cannot be engaged:
- For an error caused by a lack of information or incorrect information provided by the customer,
- Insofar as the prejudice suffered by the Client is not caused by an intentional or gross fault of the service provider.
- For a delay caused by the client that would make it impossible to comply with the agreed or legally prescribed deadlines.
- Each party is liable to the other for any breach of the obligations imposed on it.
The service provider has taken out the necessary insurance to cover its civil liability for direct physical, material and non-material damage for which it would be held liable. The service provider has also taken out a professional civil liability guarantee.
The provider commits to: “
- Respect the strictest confidentiality regarding the information provided by the customer, and be designated as such,
- Do not disclose any information about the services provided to clients,
- Return any documents provided by the client at the end of the assignment,
- Sign a confidentiality agreement if the client so wishes.
Each party undertakes to treat the provisions of these terms and conditions as confidential and not to disclose them; third parties, including the various partners undertaken by the Partner for the performance of the service, without the express written consent of the other party.
8. Commitment of the parties
In the event that the designated consultant(s) is (are) prevented by the service provider, the latter undertakes to provide for his (their) replacement by one or more consultants with the same skills. The client undertakes not to use, in any form whatsoever, the services of the service provider’s consultants without his prior and written consent, and this, as of today and in the year following the end of the service provider’s mission. Any infringement of these provisions shall constitute a misuse of know-how and unfair competition and shall immediately be punished by an indemnity corresponding to the amount of the total gross annual remuneration of the employees wrongfully engaged by the client.
The prices of the services are those detailed in the quotations or contracts accepted by the customer. They are expressed in euros and are subject to VAT. Prices can be calculated on a flat-rate basis, per hour.
It is agreed between the parties that the payment by the client of all the fees of the service provider is equivalent to receipt and final acceptance of the services. Under no circumstances may the price of the service be renegotiated after the service has been provided.
Prices are reviewed annually on 1erJanuary by the provider. They are also indexed to the cost of living.
10. Payment terms
A deposit of 50% of the total amount of the order to be processed is required as an accompaniment to the order form.
- If the anticipated duration of the assignment does not exceed 4 weeks, the balance will be adjustable at the end of the assignment entrusted to the service provider within 15 days at the latest.
- If the foreseeable duration of the assignment is longer than 4 weeks, a second instalment will be requested at the mid-point of the assignment and the balance will be payable at the end of the assignment entrusted to the service provider within 15 days at the latest.
In the case of an offer of date to date service (such as monthly assistance for example), the end of the assignment is understood as the end of the monthly assistance period, from date to date.
In the case of a specific assignment, such as an audit day, assistance, advice or audit, the end of the assignment is understood as the end of the actual assignment and sanctioned by the mission of an end of assignment report and the corresponding invoice by the service provider.
Bank payments must be made by bank transfer: Account number: LU43 0022 1101 2014 2700, BIC code: BILLLULL.
Bank charges are the responsibility of the ordering party.
Payment by bank cheque is not accepted.
11. Invoicing of travel during services
For services requiring the presence of the consultant mandated by the service provider to carry out the service at the client’s premises or in any other place of his choice, the announced rates do not take into account the travel and accommodation expenses of the consultant. These will be added to the balance to be invoiced together with the corresponding supporting documents. The consultant’s trips are agreed upon from the headquarters of eSST SA up to the place of destination agreed with the client.
12. Force majeure
Force majeure means any situation or event that is impregnable and exceptional, independent of the will of the parties and not attributable to the fault or negligence of the party;one of them, which prevents one of the parties from performing one or more of its treaty obligations and which has not been able to be overcome despite all due diligence. Defects in equipment, materials or materials, their late availability, labour disputes, strikes, failure to notify;a subcontractor and financial difficulties can only be invoked as force majeure if they are the direct consequence of an established force majeure.
If one of the parties is confronted with a case of force majeure, it shall notify the other party without delay by registered letter with acknowledgement of receipt, or by equivalent means, specifying the nature, probable duration and specific visible effects.
None of the parties shall be considered to have breached or contravened its treaty obligations if it has been unable to perform them due to force majeure. If, due to force majeure, the party concerned is unable to perform the tasks entrusted to him, he is not entitled to compensation.
The parties shall take all necessary measures to reduce their possible damage to a minimum.
>13. Cancellation and postponement conditions
Any decision to postpone or cancel must be notified to the service provider in writing.
For consulting, assistance and audit services: in the event of total or partial cancellation of the service, even in cases of force majeure, less than 10 clear working days before the start of the service, the amount of the down payment will be kept by the service provider. For accompaniment, coaching and pre-sentimental assistance days: in the event of total or partial cancellation of the service, as well as in the event of postponement of the selected intervention dates or of any new date validated subsequently, “in the event of a cancellation;On the client’s initiative or at his own initiative, the service provider will be entitled to an indemnity to cover the costs of studying, preparing and reserving the blocked dates, calculated as follows:
- Total amount excluding tax of benefits withheld in the event of cancellation or postponement within 10 days prior to the start of the service.
- 50% of the total amount excluding tax of the benefits provided in the event of cancellation or postponement between the 11th and 30th day before the start of the service.
- 25% of the total amount excluding tax of the benefits provided in the event of cancellation or postponement between the 31st and the 60th day preceding the start of the service.
14. Late penalties
Any unpaid amount at the end of the due date will result in the customer paying a penalty for late payment published semi-annually in the B-Memorial and corresponding to the reference rate of the European Central Bank, which will be increased by 8 percentage points. These penalties are automatically payable upon receipt of the notice informing the customer that they have been applied to his debit.
In the event of a breach by one of the parties of one of its obligations and not remedied within 30 days from the date of first submission of the registered letter with accused person;If the other party notifies the buyer of the defaults and sends it, the latter may claim termination of the contract without prejudice to any damages to which it may claim the previous case.
16. Order rejection
In the event that a customer places an order with the service provider, without having proceeded to the payment of the previous order(s), the service provider may refuse to honour the said order and to deliver the services concerned, without the customer being able to offer any compensation, for any reason whatsoever.
17. Intellectual property
The service provider shall determine, out of all the services provided under this Agreement, the integrity of the author’s economic and moral rights.
The service provider undertakes to transfer to the client, provided that the latter has paid the full price of the service in full, the totality of the economic rights over the said services.
In the event of full non-payment of the price within the agreed time limits, the client undertakes to return to the service provider all elements and documents in his possession relating to the services performed by the service provider, on any medium whatsoever, as well as any copies that may have been made.
In all cases, the provider retains ownership of the methods, know-how and processes that he has developed or implemented and that he may freely use for other projects.
18. Data protection
18.1 Identification of parties
With regard to the applicable legislation, the Customer acts as controller and the Supplier as supplier of a service, and not as subcontractor of the Customer.
18.2 Description of the treatments covered by the Benefit
For the performance of the tasks governed by the service, the client has transmitted and will transmit personal data to the Service Provider and has requested and will request it to implement or carry out on its behalf a number of processing operations that the Service Provider will carry out in accordance with these general conditions, but also in accordance with the applicable legislation.
Indeed, the Service Provider undertakes to strictly apply the provisions of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to data processing;The law of 1 August 2018 on the organisation of the National Commission for Data Protection and the General Regime on Data Protection. The parties undertake to always comply with the applicable data protection legislation, including in the event of any changes to the above-mentioned texts.
In this context, the Supplier is authorised to process the personal data necessary for the performance of this service, as defined in Article 3 above.
The purpose of the processing operations carried out by the Supplier is mainly the execution of the contract.
The personal data likely to be processed in this context are:
- Names and first names, professional title, contact information and any information that could identify a natural person, including photos and/or videos where they appear.,
- The persons concerned are only persons in a working relationship with the client.
18.3 The Supplier’s obligations towards the controller
The Service Provider undertakes to
- process the data only for the sole purpose(s) that is/are the subject of the contract,
- process the data in accordance with the documented instructions of the controller. If the Supplier considers that an instruction constitutes a violation of the European Regulation or any other provision of Union law or Luxembourg law relating to data protection, it shall immediately inform the controller. In addition, if the Supplier is required to carry out a data transfer to a third country or international organisation, under Union or Luxembourg law, it must inform the controller of this legal obligation before processing,
- guarantee the confidentiality of the personal data processed under the contract,
- ensure that persons authorized to process personal data under this contract:
- s’s commitment to respect confidentiality or are subject to an appropriate legal obligation of confidentiality
- receive the necessary training in personal data protection,
- take into account, with respect to its tools, products, applications or services, the principles of data protection from the design stage and data protection by default.
The Supplier shall take all necessary precautions of a technical or organisational nature to ensure the protection of the data processed against accidental or unlawful destruction, accidental loss, alteration, dissemination or unauthorised access and against any other form of unlawful processing. More generally, the Supplier undertakes to implement all reasonable security measures with regard to the data processed to prevent any data breach.
The Service Provider undertakes to keep a register of all categories of processing activities carried out on behalf of the controller as provided for by the applicable legislation referred to above.
The Supplier shall provide the controller with the necessary documentation to demonstrate compliance with all its obligations and to enable audits, including inspections, to be carried out by the controller or another auditor other than it has mandated, and shall contribute to such audits.
The Supplier may use a subcontractor (hereinafter referred to as “subcontractor”) to carry out specific processing activities. In this case, the Supplier shall inform the controller in advance and in writing of any planned changes concerning the addition or replacement of subcontractors. This information must clearly indicate the outsourced processing activities, the identity and contact information of the processor and the dates of the outsourcing contract. The controller has a maximum period of 3 days from the date of receipt of this information to present his objections. This subcontracting can only be carried out if the controller has not objected within the agreed period.
The subcontractor is required to comply with the obligations of this agreement on behalf of and according to the instructions of the controller. It is the Supplier’s responsibility to ensure that the processor provides sufficient guarantees as to the implementation of appropriate technical and organisational measures in such a way that the processing meets the requirements of the European Data Protection Regulation. If the processor does not fulfil his data protection obligations, the processor remains fully liable to the controller for the processor’s performance of his obligations.
18.5 Right of information of the persons concerned
It is the controller’s responsibility to provide the information to the persons concerned by the processing operations at the time of data collection.
18.6 Exercise of the rights of persons
To the extent possible, the Supplier must assist the controller in fulfilling his obligation to comply with requests to exercise the rights of the data subjects: right of access, rectification, deletion and objection, right to limit processing, right to the portability of data, right not to be the subject of an automated individual decision (including profiling).
When the persons concerned exercise requests from the Supplier to exercise their rights, the Supplier must send these requests for receipt by electronic mail to [email protected].
18.7 Notification of personal data breaches
The Service Provider shall notify the controller of any violation of personal data within a maximum period of 24 hours after becoming aware of it and by any means at its disposal, ensuring that the information has been received by the controller. This notification shall be accompanied by all relevant documentation in order to enable the controller, if necessary, to notify this breach to the competent supervisory authority.
18.8 Data retention
During the entire duration of the contract, the data processed must be kept by the parties insofar as the law so requires;allows, and more generally, ten years after the end of the year in which this relationship ends.
18.9 Data output
At the end of these General Terms and Conditions, the subcontractor undertakes to return all personal data to the Service Provider, or to return personal data to any person signed by the Client.
The return must be accompanied by the destruction of all existing copies in the subcontractor’s information systems. Once destroyed, the subcontractor must provide written justification for the destruction.
18.10 Obligations of the controller towards the Service Provider
The controller undertakes to:
- provide the Supplier with the data referred to in the contract,
- document in writing any instructions concerning the processing of data by the Supplier,
- ensure, before and throughout the processing operation, that the obligations laid down in the European Data Protection Regulation are met by the Supplier,
- supervising the processing, including carrying out audits and inspections of the Service Provider.
The fact that the claimant does not invoke himself at a given time from one of the clauses herein shall not constitute a waiver of the same clauses at a later date.
20. Client acceptance
These general terms and conditions of sale are expressly approved and accepted by the customer, who declares and acknowledges that he has full knowledge of them and therefore renounces them; asserts itself against any contradictory document and, in particular, against its own general terms and conditions of purchase, which shall not be enforceable against the service provider, even if it has been made aware of them.
21. Applicable law and competent jurisdiction, date of application of the GTCS
Any dispute relating to the transactions referred to by the GTCS, which cannot be settled amicably, shall be submitted to the exclusive jurisdiction of the courts of Luxembourg. All clauses contained in these GTCS as well as all sales transactions referred to therein are subject exclusively to Luxembourg law.
22. Date of application of the GTCS
The GTCS come into force on 22 November 2019.
In case of contradiction between the French and the English version of this text, the French version shall prevail.