1. Definition of the Service Provider
The Service Provider is a company of the HIVENTY group, a group specializing in providing technical services for audiovisual, film, and multimedia companies.
2. Definition of the Customer
The Customer is a natural or legal person and/or its appointed assignees and/or, more generally, any third party expressly authorized and appointed by the Customer, who is the beneficiary of the service ordered and who assumes the corresponding
payments. The Customer certifies and warrants that it is committed to the Service Provider in the context of a professional activity, and therefore recognizes that the protective provisions applicable to contracts agreed-upon with non-professional consumers as well as the provisions of Articles 1127- 2 and 1127-1 of the French Civil Code do not apply to it.
3. Scope of application
Placing an order with the Service Provider implies full acceptance unreservedly by the Customer of the General Terms and Conditions of Sale in force on the date of the placed order. The General Conditions in force govern the entire contractual relationship with the Customer for any reason whatsoever. They are an integral part of all orders and their consequences. They cancel and replace all previous conditions and prevail over any other document previously issued by the Service Provider, including brochures and commercial documents as well as all documents and the Customer’s general terms and conditions of purchase whose stipulations may be to the contrary. The fact that the Service Provider does not enforce any one of these General Conditions at a given time shall not be interpreted as a waiver by the Service Provider to subsequently enforce it.
4. Quote – Order – Cancellation
All quotes from the Service Provider shall be drawn up in writing, according to the estimated schedule for performing the services and shall be subject to the quality of the items and information provided by the Customer, accompanied by a copy of the general terms and conditions in force. The validity of a quote shall be limited to 30 calendar days from the date it was sent to the Customer. After this period transpires, the Service Provider shall deem the quote was not accepted and shall no longer be bound to it. As a consequence, the Service Provider shall be entitled to refuse the order and/or entitled to propose new conditions (prices, deadlines, etc.).
Any work order shall only be taken into consideration when a purchase order signed by the Customer is submitted or a signed quote featuring the company’s stamp specifying the nature of the work is submitted and, if necessary, upon receipt of the advance payment stipulated for the order. If necessary, it should be noted that submitting the signed purchase order or quote implies acceptance of the general terms and conditions in force without reservation.
Any additional supplies or services requested by the Customer or its representative during performance of the initial order must be subject to a new quote for an additional order.
All work begun shall be due in full, especially in case of suspension or cancellation of the work by the Customer.
Any cancellation of an order before the commencement of the work shall result in the payment of a termination penalty:
– In case of cancellation less than 10 business days before the commencement of the work, 30 % (thirty percent) of the amount of the quote including tax for the order concerned.
– In case of cancellation less than 5 business days before the commencement of the work, 50 % (fifty percent) of the amount of the quote including tax for the order concerned.
Similarly, the Customer shall be required to reimburse any expenses incurred by the Service Provider for this order (example: purchase of specific equipment, hiring, etc.).
Except in special cases, all prices are in euros, excluding taxes delivery charges, and storage. These prices may be adjusted at any time without notice. However, the final prices established in the order may not be changed.
The applicable VAT rate shall be the rate in force at the time the quote was accepted unless otherwise required by law. The Service Provider also reserves the right to immediately pass on to its prices all new taxes applicable to its business.
6. Payment – Late Penalties – Right of Retention
The work and supplies are payable on the payment date appearing on the invoice. Unless otherwise specified, the payment date is upon receipt of the invoice.
In the event of a disputed invoice, the customer shall be required to dispute the invoice via registered mail with acknowledgment of receipt or via email with acknowledgment of receipt within 10 business days after receipt of the disputed invoice. After this period, the invoice shall be deemed accepted in full without reservation by the Customer.
Late payments shall incur late interest ipso jure starting on the day after the payment deadline indicated on the invoice or, where applicable, the day after the payment deadline or lapse of the payment deadline at a rate of ten times the legal interest rate (Article L 441-6 of the French Commercial Code), as well as a flat rate compensation for debt collection costs at the current rate as provided by Article D 441-5 of the French Commercial Code without prejudice to the possible compensation pursuant to the conditions of common law for all other damages directly or indirectly resulting from this late payment.
In accordance with the laws in force, the Service Provider may exercise its right of retention on the items and equipment placed, manufactured, and stored at the Service Provider’s premises as a guarantee for any amounts that the Customer may owe it for the order until full payment of all outstanding amounts.
The defaulting Customer shall bear the costs for registering the Service Provider’s rights and collecting any amounts due.
7. Restitution and Storage of Entrusted Items
The Customer shall be responsible for taking back the items it has entrusted to the Service Provider or that were manufactured by the Service Provider at its own expense at the end of the services provided by the Service Provider, except in the case where the Customer accepts an offer by the Service Provider to physically and/or digitally store them.
If there is no physical and/or digital storage contract entered into between the Customer and the Service Provider, the Customer shall be required to remove the items in question or have them removed at its own expense and shall compensate the Service Provider for any logistics and storage fees that may have been incurred until collection at the current rate.
Subject to full payment of the services and if there is no physical and/or digital storage contract entered into between the Customer and the Service Provider, if within one month from the end of the work the Customer has not collected the items it entrusted to the Service Provider and/or which were made by the Service Provider, the Service Provider reserves the right:
– To decide and proceed with forced delivery of the items under the Customer’s exclusive responsibility who waives, in this case, any claim or dispute regarding the content and methods chosen by the Service Provider (including but not limited to price, choice of carrier, packaging, etc.).
– To destroy the items entrusted to it by the Customer or work done for it within 3 months after warning the Customer and the Customer shall not be entitled to claim any compensation whatsoever.
Intermediate files created and/or used during the performance of a service shall be kept 5 business days after receipt of the work by the Customer. After this period, the Service Provider may proceed with destroying them and the Customer shall not be able to claim any compensation. Similarly, if there is no physical and/or digital storage contract, the Service Provider cannot be held liable for any loss or damage of any nature whatsoever of all or part of the items and cannot be held liable for managing the items on the Customer’s behalf. The Service Provider shall also not be liable for the following (this list is not exhaustive):
– Managing letters of access to the items.
– Managing the pledging of these items to a third party.
– Managing the change of ownership.
8. Retaining Ownership
In accordance with the law of May 12, 1980 and by express agreement between the Parties, the Service Provider shall retain ownership of the items delivered and billed until full payment of the price in principal and incidental expenses.
The delivery of an instrument creating an obligation to pay does not constitute a payment within the meaning of this clause. Failure to pay on any one of the due dates may result in a claim on the items delivered by the Service Provider. These provisions do not impede the transfer of the risks of loss and deterioration of the items from taking place at the time of delivery to the Customer, as well as any damages they may cause to the Customer.
9. Transport – Delivery
Unless specifically stated in the quote, the transportation of items shall be paid for exclusively by the Customer which shall be done under its full liability regardless of whether the delivery method is physical or electronic.
If the work done by the Service Provider and/or the items provided by the Customer are not removed, they will be handled and stored at the Customer’s risk and expense and the Service Provider declines any and all liability in this regard.
For digital deliveries, file uploads are made through telecommunications networks to a server or to a destination communicated by the Customer under its sole responsibility.
The Service Provider may not be held liable in case of a failure or breach by the third party operator.
10. Intellectual Property – Warranties
The Customer represents and warrants to the Service Provider that it holds all of the rights authorizing it to place an order for itself and/or third parties it has authorized and expressly communicated to the Service Provider.
Any work or program or elements of a work or program is registered by the Service Provider upon receipt on behalf of the applicant, a natural or legal person, to which it can only be returned unless evidence of the chain of rights provided by the person who avails himself of a transfer to his benefit.
As soon as it orders works, the Customer declares and expressly certifies it has access rights to the items and rights of exploitation for the work or program and that it has obtained all of the authorizations required for its order.
Given this guarantee, the Service Provider is expressly released from checking the ownership of the Customer’s rights for each work order and thereby the proper chain of rights.
– The Customer represents and warrants to the Service Provider that it holds all of the necessary rights of exploitation, in particular the copyrights, related rights and reproduction and representation rights attached to the audiovisual work concerned in order to authorize the services, reproductions, and duplications requested.
– The Customer irrevocably agrees to guarantee, indemnify, and hold the Service Provider harmless against any claim or legal action it may be subject to by any person generally having a right to assert as well as any harmful consequences and any possible convictions which may result, so that the Service Provider is held harmless.
11. Limitation of Liability – Insurance
The Customer expressly acknowledges that the Service Provider’s prices and rates for the services and supplies for the ordered work are incommensurate with the value of the items – in particular the following but not limited to: materials, media (such as negatives, positives, film and other tapes, computer files), any types of objects and documents, and that of their contents, which are entrusted to the Service Provider.
Consequently, the Customer expressly releases theService Provider from any liability for the value of the content of the items with regard to the direct or indirect consequences of any kind of loss or deterioration such as:
– Any work and manipulation whatsoever on the items and their contents entrusted to the Service Provider.
– Any delays in delivery or late deliveries.
– Any work or reproductions ordered that are illegal or infringing.
– Any substitutions, deteriorations, total or partial loss, of all or part of the items and their contents entrusted to the Service Provider for whatever reason, including theft, fire, water damage, bad weather, accidents or property damage during handling, manufacturing, transfer, transportation, or storage, wherever they occur, including in the rented premises or made available to the Customer.
– Any change in the condition or quality of the items and their contents entrusted to the Service Provider after performance of the work operations.
– Any storage of the entrusted items and work performed for whatever reason.
– Any alteration in the quality or disappearance, in whole or in part, of the information (including sounds, images, computer programs, contents of computer files) contained on any media (such as films, tapes, media and digital files or other types of future media) entrusted or made as a product of the work ordered by the Customer.
The Service Provider does not guarantee the durability of the information contained on any media.
The Customer declares to accept this non-liability clause without reservation otherwise the Service Provider would not have committed itself and would have refused any order or commitment.
No stipulation to the contrary, especially in the Customer’s documents, can be interpreted as the Service Provider’s acceptance of a special dispensation that is likely to reduce or to annul this non-liability clause or to allow its liability to be incurred.
Consequently, the Customer declares under its sole responsibility and warrants to the Service Provider that it has taken out an insurance policy before commencement of the work or any contractual relationship with the Service Provider begins, that covers at least all of the previously stated risks that may arise during the work or contractual relations and subsequently, as well as during the period during which the items given by the Customer to the Service Provider and those carried out under the works that are not collected by the Customer, regardless of the place and storage conditions of these items.
In any case, the Customer expressly waives any recourse against the Service Provider regardless of the nature and extent of any direct and indirect damages caused to it. Any insurance policy taken out by the Customer must include a waiver of recourse against the Service Provider and its insurers. When present at the Service Provider’s premises, the Customer must comply with the internal regulations, including the safety instructions and access instructions for the various locations of the site.
In any case, in the event where the Service Provider is liable, it may only be required to pay the price of the blank physical or digital media, at its own rate, and to cancel the invoices relating to the work in question that was carried out and invoiced by the Service Provider.
12. Force Majeure
The Service Provider shall not incur any liability or be considered to be in breach of any of the clauses of these General Conditions of Sale if it is delayed or prevented from performing one of its obligations due to a force majeure situation or in case any event occurs that is beyond its control.
By express agreement, the following are regarded as force majeure events or an event that is beyond the Parties’ control in addition to those usually determined as such by the French courts (this list is not exhaustive): wars, insurrections, riots, effects of nuclear fission, labor disputes within or outside the company, bad weather, natural disasters, transportation disruptions, impossibility of supplying goods and products that are necessary for doing the work, epidemics, earthquakes, fires, water damage, government or legal restrictions, computer or peripheral equipment failure, telecommunications or electronic networks blockages or disruptions, continuous or discontinuous power outages totaling more than two hours during business hours, failure of computer systems or software, since they will prevent or delay the performance of the Service Provider’s contractual obligations.
In order to be able to invoke force majeure or any event beyond its control, the Service Provider must inform the Customer of the event in question, indicating, if possible, an estimate of its duration or the delay caused.
Unless expressly refused by the Customer, the Customer authorizes the Service Provider to subcontract all or part of the work entrusted to it by the Customer to third parties. These general conditions shall remain applicable in case of partial or total subcontracting entrusted to third parties. HIVENTY Group companies are not considered to be third parties vis-à-vis the Customer.
The Service Provider has taken a set of protective measures in accordance with the legal requirements of the General Data Protection Regulation (GDPR) no. (EU) 2016/679 of April 27, 2016 which are described in the personal data security policy published at the permanent address: https://www.hiventy.com/rgpd/
The invalidity or unenforceability of certain provisions of these General Conditions of Sale shall not affect the validity or enforceability of the other provisions.
16. Jurisdiction – Applicable Law
Any dispute concerning the interpretation or execution of these General Terms and Conditions of Sale and the contracts that they govern shall be the exclusive jurisdiction of the Commercial Court of Nanterre notwithstanding a third-party claim or multiple plaintiffs or multiple defendants. French law shall exclusively apply.
Specific additional terms and conditions of sale for post-production and restoration of film services
1. Backup Item
A backup item is recommended before any work is done on original items. Any work order from a medium that does not have a backup item expressly releases the Service Provider from all liability. In accordance with the legal provisions, only films made on backup media and supplies and equipment in accordance with French standards in force shall be used.
All prices exclude taxes and shall be paid immediately and in full when media are made available to the laboratory. All rates include film. In the event of an increase in the prices of raw materials, the rates will be adjusted in due proportion without notice. All other supplies are charged extra according to the current rate. The billed footage shall take into account the boot and manufacturing losses.
Work done outside normal opening hours shall be billed at an increased rate and must be subject to a special agreement.
3. Delivery deadline
The delivery times indicated by the Service Provider are based on the Customer submitting the signed purchase order and all of the items necessary for carrying out the work. Delivery times are estimated and are not guaranteed. Exceeding delivery times cannot result in cancellation of the order or compensation for the Customer or any third party.
4. Rushes – Duplicates
If applicable, the items manufactured or imprinted on any media whatsoever (physical or digital) which have not been integrated in the film editing (or the work) at the time the master of this film (or work) is finalized shall be deemed to be “duplicates “.
The Customer shall be required to collect these duplicates and original trims and/or rushes within a maximum of one month from validation of the item intended for exploitation.
If there is no storage contract for these items agreed-upon between the Customer and the Service Provider, they must be taken back by the Customer within a maximum period of three months. Beyond this period, these items shall be automatically destroyed at the Customer’s exclusive expense.
This service implies acceptance of a storage contract defining the pricing, security, and storage conditions of the items.
5. Nitrate Film
The Service Provider is only required to store nitrate film stock at its premises for the duration of the expertise and/or digitization of said items. Once these operations have been carried out, the Customer shall be required to take back or have said items taken back within a maximum of 15 calendar days. After this period, the Service Provider shall return said items at the Customer’s exclusive expense. The delivery times indicated by the Service Provider are based on the Customer submitting the signed purchase order and all of the items necessary for carrying out the work. Delivery times are estimated and are not guaranteed. Exceeding delivery times cannot result in cancellation of the order or compensation for the Customer or any third party.