Terms and conditions of sale

• “Agency”: SAS BITWIP CONSEIL, with share capital of €10,000 - 1 Place Victor Schoelcher - 97300 - CAYENNE - French Guiana - Siret: 82768801100010 - NAF: 6201Z - RCS CAYENNE - Phone: 09 80 80 82 42 - Email: contact@bitwip.fr - Website: bitwip.fr
• “Client”: any natural or legal person, governed by private or public law, who subscribes to the Agency’s Services.
• “Third-Party Components”: software, frameworks, libraries, plugins, themes and any other element under an open source license (GPL, MIT, Creative Commons, etc.) or a third-party commercial license used in delivering the Services. These elements remain subject to their respective original licenses.
• “General Terms and Conditions”: all the common clauses of the Contract accepted by the Agency and the Client
• “Special Terms and Conditions”: all the specific clauses of the Contract, set out in the quote provided to the Client
• “Contract”: the contractual whole made up of the General Terms and Conditions, supplemented by the Special Terms and Conditions, as well as any other contractual documents where they are designated as such.
• “Deliverables”: finalized, usable files delivered to the Client (PDFs, web exports, print files, final videos, etc.) for which the usage rights are transferred in accordance with the Intellectual property article.
• Creative Deliverables: works created specifically for the Client as part of the Services, including visual identities, brand guidelines, graphic designs, websites, written content intended for publication, visuals, audiovisual productions and communication materials.
• Consulting Deliverables: analysis and recommendation documents delivered to the Client, including audits, assessments, reports, benchmarks, studies, strategic recommendations, communication plans, media plans and specifications.
• “Proprietary Source Files”: technical working files created and used by the Agency to produce the Deliverables, including: native design files (.psd, .ai, .indd, .fig, etc.), masks, layouts, templates, video editing files, audio files, source 3D models, and any other intermediate technical file. This definition excludes elements under an open source or third-party license (see “Third-Party Components”).
• “Proprietary Tools and Processes”: all methods, know-how, processes, workflows, tool configurations, artificial intelligence prompts, scripts, automations, and any other technical process developed or used by the Agency to deliver the Services.
• “Services”: the services offered by the Agency and listed in the Service offering article herein.

These General Terms and Conditions apply to Clients acting for professional purposes and to legal entities governed by public law. Any order placed by a Client acting for non-professional purposes is subject to specific special terms and conditions, communicated before the contract is concluded.

The Client declares and acknowledges that the negotiations preceding the conclusion of this contract were conducted in good faith and that, consequently, during the pre-contractual negotiation phase, it received all the necessary and useful information to enable it to commit with full knowledge of the facts, the parties having mutually disclosed any information likely to determine their consent and of which they could legitimately have been unaware.

This Contract applies to all Services offered by the Agency to the Client, comprising a range of general services, excluding certain services that are subject to a separate contract, as specified, where applicable, in the commercial offer.

In accordance with the regulations in force, these General Terms and Conditions of Sale are systematically communicated to any Client who requests them, to enable the Client to place an order with the Agency. They are also communicated to any Client prior to the conclusion of a single agreement as referred to in Articles L441-3 et seq. of the French Commercial Code, within the legal time limits.

Any order for Services implies the Client’s acceptance of these General Terms and Conditions, which are appended to the Special Terms and Conditions.

In accordance with the regulations in force, the Agency reserves the right to depart from certain clauses of these General Terms and Conditions, depending on the negotiations conducted with the Client, within the framework of the Special Terms and Conditions.

This contract, which takes effect upon signature of the Special Terms and Conditions, is concluded for the time necessary to perform the Services.

To carry out the assignments provided for in this contract, the Agency is available on business days, Monday to Friday, 8:30 a.m. to 4:30 p.m. local time at its overseas offices. Travel may occasionally be arranged on Saturdays or Sundays, subject to the Agency’s availability.

4.1. General services

The Agency supports its clients in meeting their communication needs, from consulting to delivering communication actions and tools:

• Communication consulting;
• Design studio;
• Content strategy;
• Advertising and advertiser management;
• Digital and innovation;
• Training.

The components of the Service will be listed precisely in the Special Terms and Conditions, it being specified that the scope of the Agency’s work is strictly limited to what is set out in said Special Terms and Conditions.

4.2. Communication consulting services

The Agency undertakes to provide these Services under a separately concluded Contract, as an option.

4.3. Website Creation and Maintenance Services

The Agency undertakes to provide these Services under separately concluded Contracts, as an option.

In the event of a discrepancy between these General Terms and Conditions and a separate contract, the latter shall prevail.

4.4. Graphic design and branding services

The Agency undertakes to provide these Services under a separately concluded Contract, as an option.

4.5. Communication campaign services

The Agency undertakes to provide these Services under a separately concluded Contract, as an option.

5.1. Best-efforts obligation

The Agency is subject to a general best-efforts obligation for all Services.

5.2. Duty to advise

The Agency is subject to a general obligation to advise, inform and provide information to the Client. It must inform the Client of the essential characteristics of the Services and ensure that they meet the Client’s needs.

6.1. Duty to cooperate

The Client undertakes to cooperate with the Agency so that the Agency can carry out its assignments in line with the Client’s expectations, in particular by providing all the information needed to better understand its needs, and by responding to the Agency’s requests as quickly as possible.

If an event occurs that is likely to delay the performance of the Services, the Client must notify the Agency without delay.

6.2. Acceptance of the Services

The Client undertakes to confirm acceptance of the Services, in writing, in accordance with the procedure and time limits set out in the contract

In consideration for the Services, the Agency will receive an overall flat fee, the terms of which will be set out in the Special Terms and Conditions.

The prices of the Services are those in force on the day the Special Terms and Conditions are signed, excluding application of the indexation clause provided for in the Indexation clause article. They are stated in euros and shown both excluding and including all taxes. Where there is an exemption from Value Added Tax under the French General Tax Code, in particular under Article 294-1 of the French General Tax Code, this is specified on the quote constituting the Special Terms and Conditions.

Where a tacit renewal clause is clearly indicated in the Special Terms and Conditions, the price will be revised automatically each year, on the anniversary date of the Contract, by applying the following formula:

P(t) = P(t-1) (S(t)/S(t-1)) where:

• P(t-1) is the base price the first time, and the revised price on subsequent occasions;
• P(t) is the fee after revision;
• S(t-1) is the latest Syntec index known on the date of signature;
• S(t) is the Syntec index corresponding to the anniversary date of the price revision.

If the index ceases to exist, and failing agreement on a new index, express jurisdiction is granted to the President of the Commercial Court of CAYENNE to define an index to be incorporated into the revision formula. The price applicable provisionally during the period in which a replacement index is determined will be the last price applied on the basis of the last known index. The difference between the price paid and the price revised using the new index will be due on the date it is determined.

The rates offered include the discounts and rebates that the Agency may grant in view of its results or of the buyer taking on certain services.

No discount will be granted for early payment.

Invoices are issued and transmitted electronically, where applicable through an e-invoicing platform.

The Agency implements electronic invoicing to the extent that the regulations require it for the transaction concerned. The applicable value added tax regime is determined by the place where the Services are performed, specified on the quote constituting the Special Terms and Conditions and restated on the invoice.

The Client undertakes to provide the Agency, no later than the signature of the Special Terms and Conditions, with the information needed to issue and route invoices:

• Its SIREN number, or its SIRET number where the invoiced establishment differs from the head office;
• Its intra-EU VAT number, where it has one;
• Its value added tax status;
• The billing email address and the platform on which it receives its invoices;
• The order or purchase order reference it wishes to appear on the invoice;
• The name and email address of the person or department responsible for payment;
• The delivery address, where it differs from the billing address.

Where the Client is a legal entity governed by public law, it also provides its SIRET number, its service code, its legal commitment number and the reference of the public contract or purchase order.

The Client informs the Agency without delay of any change to this information.

The rejection, refusal or non-receipt of an invoice resulting from incorrect, incomplete or outdated information provided by the Client has no effect on the amount becoming due. The payment period runs from the date the invoice is first issued by the Agency.

Orders are paid in accordance with the terms set out in the Special Terms and Conditions, as set out in the quote provided to the Client.

On simple request, the Agency will provide the Client with the information needed (bank details, direct debit authorization) to pay for its services.

12.1. Deposits

The Agency may request one or more deposits, the amount or percentage of which will be set out in the Special Terms and Conditions. The deposit is due upon ordering and work begins only once it has been received.

12.2. Price breakdown and invoicing trigger

The price is broken down into phases or milestones in the Special Terms and Conditions.

The event triggering the invoicing of each phase is the completion of the corresponding work and the making available of the Deliverables to the Client, regardless of the Client’s formal approval of those Deliverables, which the Client expressly accepts.

In the absence of a breakdown in the Special Terms and Conditions, and for any project whose estimated duration exceeds TWO (2) months, the Agency invoices the services performed monthly, based on the progress recorded.

The balance is due upon completion of the last phase, without invoicing of this balance being subject to final delivery within the meaning of Article 21.

12.3. Payment deadlines

Invoices must be paid no later than THIRTY (30) days from their date of issue, unless an additional payment period has been expressly granted, that is, set out in a writing that is binding between the Parties.

Each payment will give rise to the issuing of an invoice by the Agency, stating:

• The date and place where the invoiced Services were performed;
• The Agency’s company name;
• A detailed breakdown of the Services provided;
• The total amount payable excluding taxes and including all taxes;
• The payment due date.

Failure to pay all or part of an amount on its due date automatically entails, without any reminder or formal notice being required:

• All sums remaining due under the Contract becoming immediately payable, regardless of the payment method originally agreed;
• The application of late payment penalties at a rate of three times the annual statutory interest rate in force, calculated from the invoice due date until the price is paid in full;
• Payment of a fixed collection fee of FORTY (40) euros, in accordance with Articles L441-10 and D441-5 of the French Commercial Code, without prejudice to compensation for additional collection costs incurred, upon presentation of supporting documents;
• The immediate suspension, automatically and without prior formal notice, of the performance of all or part of the Services, as well as of the provisional right of use granted to the Client over Deliverables that have not been paid in full.

Where the Client is a legal entity governed by public law, the applicable default interest and fixed fee are those provided for by the regulations on payment deadlines in public procurement.

If the contract is terminated before its end by the Client or by the Agency, the Client formally undertakes to settle and pay the amounts relating to the current schedule, to the items completed or in progress, and to any additional services performed.

Subject to full payment of the sums due for the items completed, the Client retains the benefit of the assignment and licenses of rights provided for in Article 24 over the Deliverables accepted. Failing full payment, all copyrights remain the sole and entire property of the Agency, with the exception of the data provided by the Client.

The Source Files, as well as the Proprietary Tools and Processes created and used by the Agency, constitute the Agency’s know-how and intangible assets. They remain its exclusive property and may not be claimed, assigned or disclosed to the Client without prior written agreement and a specific financial contribution, separate from the price of the Services.

This provision applies in particular, and without limitation, to:

• Source design files (.psd, .ai, .indd, .fig, etc.)
• Masks, layouts and templates
• Editing files and audiovisual sources
• Artificial intelligence prompts and instructions
• Tool configurations, scripts and automations
• Production workflows and processes
• Any intermediate technical production file

Mockups, and more broadly all original works, remain the property of the author. These documents must be returned to the author undamaged, upon request.

Any deposit already paid will be retained by the Agency as compensation for the work undertaken.

The right of withdrawal provided for by the French Consumer Code does not apply to Clients acting for professional purposes, subject to the case provided for in Article L221-3 of the French Consumer Code. Where these provisions apply, the Client may expressly request, under the conditions set out in the quote, that performance of the Services begin before the withdrawal period expires.

If the Client withdraws, the “Order cancellation” article applies in accordance with the terms described therein.

16.1. Termination for non-payment

If, within THIRTY (30) days of the “Late payment” clause being invoked, the Client has not paid the remaining sums due, the sale may be terminated automatically and may give rise to the award of damages to the Agency.

16.2. Termination for excessive price

It is expressly agreed that the Client may automatically terminate this Contract if application of the indexation clause leads to an increase of more than THIRTY (30)% over the initial price. Notwithstanding the “Termination for a sufficiently serious breach of obligation by a party” clause below, termination for an excessive revised price may only take effect FIFTEEN (15) days after receipt of a formal notice stating the intention to apply this clause, served by registered letter with acknowledgment of receipt or by any extrajudicial instrument.

16.3. Termination for a sufficiently serious breach of obligation by a party

In the event of a sufficiently serious failure to perform any of the obligations incumbent on the other Party, the Party suffering the default may notify the Defaulting Party, by registered letter with acknowledgment of receipt, of the termination of this agreement for breach, THIRTY (30) days after receipt of an unheeded formal notice to perform, pursuant to the provisions of Article 1224 of the French Civil Code.

Whatever the reason for the end of this contract, relations between the Agency and the Client must continue in a fair, honest and normal manner during the notice period; the Agency must carry out the Client’s instructions with care and diligence until the notice period expires.

The Client undertakes to continue the contracts concluded by the Agency with third parties in performance of this contract, or to handle their termination with those third parties itself. In the event of termination on its part under the conditions of the “Order cancellation” article, it will also be obliged to reimburse the Agency for the expenses and technical and artistic costs incurred by the Agency in preparing the planned Services.

Upon expiry of this contract, the Agency will return to the Client all the materials and documents entrusted to it by the Client and undertakes to destroy any copies.

The Agency retains ownership of all Deliverables until the price has been paid in full. The Client does, however, own the compiled code, but does not enjoy the right to redistribute it free of charge or for a fee, nor access to the source code until full payment has been made, unless otherwise stated in the Special Terms and Conditions. Accordingly, if the buyer becomes subject to receivership or judicial liquidation, the Agency reserves the right to claim, within the insolvency proceedings, the services sold that remain unpaid.

Unless otherwise stated in the quote provided to the Client, the Agency may handle up to TWO (2) revision rounds per project stage, at no additional cost to the Client. These revision rounds include the adjustments and approvals needed at each stage, whether for graphic design, content writing or web development.

Beyond these two included revision rounds, any additional revision round requested by the Client may be invoiced separately, at rates previously communicated and accepted. This measure is intended to ensure efficient management of the Agency’s time and resources, while allowing flexibility suited to the specific needs of the Client’s project.

Change requests must be made in writing, with reasons and details, within the time limit set out in Article 20. A change request that exceeds the scope defined in the Special Terms and Conditions does not constitute a revision round within the meaning of this article, but an additional service subject to a quote.

The Client will take care to centralize its feedback and limit the number of people involved in the approval process, in order to reduce the need for additional revision rounds.

Using up the included revision rounds does not suspend the progress of the project or the invoicing of completed phases.

For graphic design services, a print approval proof (BAT) is sent to the Client before the products are finalized, to make sure the Client is satisfied with the work.

For web project services, a development approval (BAD) is sent to the Client before integration of the graphic mockup begins, to make sure the Client is satisfied with the work.

For content writing services, an integration approval (BAI) is sent to the Client before the content is integrated into the mockups, to make sure the Client is satisfied with the quality of the substance and form, as well as their structure.

20.1. Approval period

The Client has TEN (10) business days from the date the Deliverable is made available to notify the Agency, in writing, of its approval or its change requests, stated with reasons and details.

20.2. Tacit approval

Upon expiry of the period provided for in Article 20.1, the absence of written feedback from the Client constitutes approval of the Deliverable concerned.

The corresponding phase is then deemed completed, the Agency is authorized to begin the next phase, and the corresponding amount becomes invoiceable under the conditions of Article 12.2.

20.3. Scope of approval

Approval documents bearing the Client’s signature or a digital approval, the words “approved” and the date, as well as tacit approvals obtained under the conditions of Article 20.2, constitute final approval of the stage concerned.

Consequently, the Client may not invoke a lack of conformity concerning an approved element in order to claim damages, cancellation of the order or suspension of payment of the sums due.

20.4. Changes after approval

Changes requested by the Client to approved services are subject to additional invoicing, based on their impact on the rest of the project and the urgency of the request.

21.1. Delivery and acceptance

Final delivery of the service is made, depending on the nature of the service, by the means determined by the Agency with the Client. The delivery time indicated when the order is recorded will be met only if the Client provides the items requested by the Agency in good time and gives the approvals needed for the project within the time limits set out in Article 20.1. Unless otherwise stated in the Special Terms and Conditions, a delivery time is given for information only and is in no way guaranteed. Consequently, any reasonable delay in delivering the Services may not entitle the Client to:

• The award of damages;
• Cancellation of the order.

If, upon delivery, services are missing or do not conform to the Contract, the Client must state all necessary reservations on the final invoice or in an acceptance report upon receipt of said services. These reservations must also be confirmed in writing within five days of delivery.

At the end of the service, the Agency sends the Client an acceptance report. The absence of written feedback within FOURTEEN (14) calendar days signifies the Client’s acceptance of the service.

21.2. Putting the project on hold

Where the absence of feedback, content, materials or decisions attributable to the Client exceeds FIFTEEN (15) business days, the project is automatically put on hold.

The Agency then invoices all services performed and phases completed as of the date the project is put on hold, without the Client being able to object on the grounds that the project is not completed.

The schedule is postponed by a period at least equal to the period on hold, the Agency not being required to maintain the availability of the resources originally assigned to the project.

21.3. Resumption and remobilization fees

Resuming work after a hold of more than THIRTY (30) calendar days gives rise to the invoicing of fixed remobilization fees equal to TEN (10)% of the amount of the services remaining to be performed, with a minimum of FIVE HUNDRED (500) euros excluding taxes.

These fees cover rebuilding the project file, reassigning resources and updating the work already done.

21.4. Project closure

Where inactivity attributable to the Client exceeds SIXTY (60) calendar days, the Agency notifies the Client in writing of its intention to close the project.

If work has not effectively resumed within FIFTEEN (15) days of this notification, the services performed are deemed accepted as they stand, the balance of the price becomes immediately due in full, and any subsequent work is subject to a new quote.

The Client retains the benefit of the assignment and licenses of rights provided for in Article 24 over the Deliverables produced, subject to full payment of the price in accordance with Article 24.5.

21.5. Public-sector clients

Articles 20.2, 21.2, 21.3 and 21.4 do not apply where the Client is a legal entity governed by public law. The rules governing acceptance of services, deposits, advance payments and the overall payment period are those set by the French Public Procurement Code and by the general administrative specifications applicable to the public contract.

The Agency guarantees that the Services performed for the Client do not infringe any intellectual property right, nor constitute any act of unfair competition or free-riding. Accordingly, it undertakes to defend the Client and bear all costs against any claim directly concerning these Services and their normal use, provided that the Client has promptly notified it and that the alleged infringement does not concern modifications or additions made by the Client. If all or part of a Service is found to constitute an infringement or other violation of a third party’s rights, the Agency must either provide the Client with another Service having the same functions within a time frame compatible with the Client’s business, or obtain at its own expense the right for the Client to continue using the Service, or else refund the Client the price received. These choices are at the Agency’s sole discretion, notwithstanding the Client’s right to seek compensation for its loss. For its part, the Client undertakes to inform the Agency immediately of any infringement of which it becomes aware, the Agency then being free to take the measures it deems appropriate.

The Agency expressly guarantees its Services against all defects in design or execution for a period of NINETY (90) days from acceptance of the services. This warranty does not cover malfunctions resulting from work by the Client or a third party, a modification of Third-Party Components, a failure to update, or improper use.

In any event, the Agency cannot be held liable for indirect damages, including loss of revenue, operating losses, loss of data or damage to reputation.

The Agency cannot be held liable for the accidental destruction of the Client’s data, the Client being responsible for backing it up.

The warranty is excluded if the Client has not complied with the conditions of use specified in the documentation and training provided by the Agency, or if the Client has worked on the delivered Service itself or had a third party do so.

The Agency cannot be held liable if the non-performance or delayed performance of any of its obligations described in these terms and conditions of sale results from 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 French Civil Code.

This article defines the intellectual property rights transferred or licensed to the Client over the Deliverables, as well as the elements over which the Agency retains exclusive ownership. It applies to all Services, whatever their nature.

Deliverables are divided into Creative Deliverables and Consulting Deliverables, within the meaning of the Definitions article. The regimes respectively applicable to them are defined in Articles 24.2 and 24.3.

No rights other than those expressly mentioned in this article are transferred or licensed to the Client. In particular, the physical handover of a Deliverable does not in itself entail any transfer of intellectual property rights.

24.1. Principle and remuneration of the assignment

In consideration for the price of the Services, which includes remuneration for the assignment on a flat-rate and final basis within the meaning of Article L131-4 of the French Intellectual Property Code, the Agency assigns or licenses to the Client the economic rights over the Deliverables, in accordance with the terms defined in Articles 24.2 and 24.3.

The Parties expressly acknowledge that the price of the Services remunerates both the services performed and the assignment of rights, without the need for a separate line on the quote.

The Client is and remains the sole owner of the content of materials of any kind that it provides to the Agency (data, files, information, content). If the Contract ends, for whatever reason, the Agency returns all such materials to the Client, along with any backup copies it may have made.

24.2. Assignment of rights over Creative Deliverables

Creative Deliverables means the works created specifically for the Client as part of the Services, including visual identities, brand guidelines, graphic designs, websites, written content intended for publication, visuals, audiovisual productions and communication materials.

The assignment covers all economic rights, including the rights of reproduction, public performance, adaptation, modification, arrangement, translation, derivation, distribution, dissemination and exploitation in all forms, by any means and any telecommunications network, existing or future.

It is granted on the following terms:

• Media: all media and all processes, known or unknown to date, print, digital, audiovisual, signage and merchandise;
• Purpose: use for the Client’s institutional, promotional and commercial purposes;
• Territory: worldwide;
• Term: the legal term of copyright protection within the meaning of Articles L123-1 et seq. of the French Intellectual Property Code, that is, seventy (70) years following the death of the last author or, for collective works, following publication;
• Exclusivity: the assignment is granted on an exclusive basis, subject to the right of commercial reference provided for in the Copyright and commercial notices and Right of publicity articles.

24.3. Rights over Consulting Deliverables

Consulting Deliverables means the analysis and recommendation documents delivered to the Client, including audits, assessments, reports, benchmarks, studies, strategic recommendations, communication plans, media plans and specifications.

Unless otherwise stipulated in the Special Terms and Conditions, the Agency grants the Client, over these Deliverables, a non-exclusive, permanent, non-transferable right of use, unlimited in time, for its own internal needs and those of the entities it controls. This right includes the ability to reproduce, distribute internally, adapt and use the recommendations for the purpose of implementing them.

This right of use does not include the ability to publish, market, assign or publicly distribute the Consulting Deliverables, nor to disclose them to a third party engaged in an activity competing with that of the Agency, without the Agency’s prior written consent. The methodologies, analysis grids, models and frameworks used by the Agency remain its exclusive property.

A full and complete assignment of the Consulting Deliverables, under the conditions of Article 24.2, may be agreed in the Special Terms and Conditions in return for additional remuneration.

24.4. Silence of the Special Terms and Conditions and order of precedence

Where the Special Terms and Conditions specify the conditions for assigning intellectual property rights, they prevail over this article.

Absent any mention in the Special Terms and Conditions, the regimes defined in Articles 24.2 and 24.3 apply automatically according to the nature of the Deliverable concerned, without any further formality being required. The absence of a line relating to the assignment of rights on the quote cannot be interpreted as an absence of assignment.

Where a Deliverable falls into both categories at once, the regime of Article 24.2 applies to the creative elements it includes and that of Article 24.3 to the analyses and recommendations it contains.

Where the Client is a legal entity governed by public law, the provisions of the general administrative specifications applicable to the public contract prevail over this article.

24.5. Condition precedent of full payment

The assignment and licenses of rights provided for in this article are granted subject to the condition precedent of full payment of the price of the Services. The transfer vests in the Client only on the day the balance is actually received.

Until that date, the Client enjoys a provisional, non-exclusive, non-transferable and revocable right of use, limited to its own communication materials. This provisional right of use is automatically suspended in the event of late payment and ends automatically if the Contract is terminated.

24.6. Moral rights

The author’s moral rights, which are inalienable and imprescriptible within the meaning of Article L121-1 of the French Intellectual Property Code, remain attached to the author.

The Client undertakes not to undermine the integrity of the works through any distortion or alteration that would betray their spirit. Variations and adaptations made in compliance with the rules of the brand guidelines do not constitute an infringement of moral rights. The Client is not required to credit the authors when using the Deliverables.

24.7. Distinction between Deliverables and Source Files

The Client acquires all usage rights over the finalized and approved Deliverables, in accordance with Articles 24.2 and 24.3.

However, the Client acquires no intellectual property rights over:

• rejected or unapproved designs;
• Proprietary Source Files (native design files, masks, custom layouts, editing files);
• Proprietary Tools and Processes (AI prompts, scripts, configurations, workflows, automations);
• specific developments and customizations built on Third-Party Components, within the limits of the applicable licenses;
• proprietary software, plugins and technical tools made available by the Agency;
• any know-how, methodology or process developed by the Agency.

These elements constitute the Agency’s intangible assets and know-how and remain its exclusive property, unless expressly stipulated otherwise in writing in the Special Terms and Conditions. This provision does not apply to Third-Party Components, which remain subject to their original licenses.

24.8. Open source components and third-party licenses

Where the Services include Third-Party Components (open source software, frameworks, CMSs, plugins, libraries), these elements remain subject to their respective original licenses (GPL, MIT, Apache, Creative Commons). The Agency claims no ownership rights over these Third-Party Components and undertakes to comply with the terms of their licenses. The Client enjoys the same rights as those granted by said licenses.

Specific developments, customizations, adaptations, configurations and integrations carried out by the Agency on the basis of these Third-Party Components constitute original works of the Agency and remain its intellectual property, within the limits permitted by the applicable licenses.

For example:

• WordPress core code: GPL license;
• commercial theme or plugin: third-party supplier’s license;
• custom child theme developed by the Agency: property of the Agency;
• specific source code developed by the Agency: property of the Agency;
• source design files (.psd, .ai, .indd, .fig): property of the Agency;
• AI prompts and workflows developed: property of the Agency.

Where the Deliverables incorporate stock images, fonts, music or any other licensed element, the Client is informed that its usage rights are limited to the terms of the license concerned, whose scope and duration may be more restricted than the assignment provided for in Article 24.2. Renewal of expiring licenses is the Client’s responsibility.

On request, the Agency provides the Client with the list of Third-Party Components and licenses used.

24.9. Optional assignment of Source Files

At the Client’s express request and in return for additional remuneration, the Agency may assign all or part of the Source Files and the Proprietary Tools and Processes.

This assignment is formalized by a dedicated line in the Special Terms and Conditions or, failing that, by a specific amendment, specifying:

• the exact scope of the elements assigned;
• the conditions and limits of use;
• the applicable additional remuneration;
• any training and support obligations.

Unless otherwise stipulated, the assignment of Source Files grants the Client a right to use, modify and reproduce them for its own needs, without the right to market them or assign them to a third party.

24.10. Client’s warranty on the materials it provides

The Client warrants that it holds all the necessary rights and authorizations over the materials it sends to the Agency, including texts, photographs, videos, music, fonts, trademarks, logos, databases and image-rights releases from the people depicted.

It indemnifies the Agency against any claim, action, judgment, defense costs and damages resulting from the use of these materials. The Agency’s warranty provided for in the Warranties article covers neither the materials provided by the Client nor modifications made to the Deliverables by the Client or a third party.

The Agency assumes no obligation of result as to the performance of the Services, which depends on external factors beyond its control, including search engine and social media algorithms, the policies of third-party platforms, the competitive environment and the behavior of the target audiences.

In particular, the Agency guarantees no results in terms of search engine ranking, audience volume, number of impressions, organic reach, click-through rate, conversion rate, community growth or return on investment, unless a numerical commitment is expressly stipulated in the Special Terms and Conditions.

Forecasts, estimates, projections and targets communicated by the Agency at the commercial proposal stage are indicative and do not constitute a contractual commitment.

The Agency cannot be held responsible for the consequences of a change to the terms of use, algorithms or advertising policies of a third-party platform, nor for the suspension, restriction or closure of an account by such a platform, unless fault on the part of the Agency is proven.

The Agency may use artificial intelligence tools for all or part of the production of the Services, in particular for research, generation, writing assistance, image processing or technical optimization.

Such use takes place under the Agency’s control and responsibility. Any element produced with the assistance of such tools is subject to human verification and approval before being delivered to the Client. On request, the Agency informs the Client of the tools used and their role in producing the Deliverables.

The Client is informed that content generated mainly by an artificial intelligence system, in the absence of a clear human creative contribution, may not benefit from copyright protection. Consequently, the Agency’s warranty provided for in the Warranties article does not extend to the protectability of such content under intellectual property law.

The Agency undertakes not to send any confidential data or personal data belonging to the Client to artificial intelligence tools without having ensured that the tool concerned offers sufficient guarantees with regard to the Personal data article.

The Client may request, in the Special Terms and Conditions, that the Services be performed without the use of artificial intelligence tools. This request may affect the timelines and price of the Services.

This article defines the Parties’ commitments regarding the protection of personal data, under Regulation (EU) 2016/679 of April 27, 2016 (hereinafter the “GDPR”) and amended French Law No. 78-17 of January 6, 1978.

27.1. Processing carried out by the Agency for its own purposes

BITWIP CONSEIL is the controller for the processing it carries out to manage quotes, contracts, invoicing, the business relationship and prospecting.

The legal basis for this processing is the performance of the Contract, compliance with the Agency’s legal obligations and its legitimate interest. The data is retained for the duration of the business relationship, then for the applicable statutory retention periods.

In accordance with Articles 15 to 22 of the GDPR, data subjects have the rights of access, rectification, erasure, restriction, objection and portability, which they can exercise at contact@bitwip.fr. Any complaint may be addressed to the Commission nationale de l’informatique et des libertés.

27.2. Processing carried out by the Agency on behalf of the Client

Where the Agency processes personal data on behalf of the Client as part of the Services, the Client acts as controller and the Agency as processor within the meaning of Article 28 of the GDPR.

The categories of data and data subjects, the purposes and the duration of the processing are determined by the subject matter of the Services described in the Special Terms and Conditions.

The Agency undertakes to:

• process the data only for the purposes covered by the processing arrangement and in accordance with the Client’s documented instructions;
• immediately inform the Client if it considers that an instruction infringes the GDPR or any other provision of Union or Member State law relating to data protection;
• guarantee the confidentiality of the data processed and ensure that the persons authorized to access it undertake to respect its confidentiality, or are subject to an appropriate statutory obligation of confidentiality, and receive the necessary data protection training;
• implement appropriate technical and organizational security and confidentiality measures, having regard to the nature of the data and the risks presented by the processing;
• notify the Client of any personal data breach as soon as possible and no later than forty-eight (48) hours after becoming aware of it, providing the necessary information and assisting it with its obligations to notify the supervisory authority and the data subjects;
• assist the Client in handling requests from data subjects to exercise their rights, as well as in carrying out data protection impact assessments and prior consultations;
• make available to the Client, on written request, the information needed to demonstrate compliance with the obligations of this article;
• at the end of the Services, return or delete the data, at the Client’s choice, within THIRTY (30) days, subject to statutory retention obligations.

The Agency is authorized to engage other processors to carry out specific processing activities, in particular for hosting, invoicing, email and production tools. It informs the Client in advance and in writing of any addition or replacement of a sub-processor, indicating the processing activities concerned and the identity and contact details of the sub-processor. The Client has THIRTY (30) days from receipt of this information to raise objections. If no objection is raised within this period, use of the sub-processor is deemed accepted.

Sub-processors provide guarantees equivalent to those of this article. The list of these sub-processors and the country where the data is hosted are provided to the Client on simple request.

Where the Agency is required to transfer data to a third country or an international organization, it informs the Client beforehand, unless the applicable law prohibits such information on important grounds of public interest. Any transfer outside the European Union is governed by a transfer mechanism compliant with Chapter V of the GDPR.

The Client guarantees the lawfulness of the data it sends to the Agency, including the existence of a legal basis and prior information of the data subjects. It indemnifies the Agency against any claim resulting from failure to comply with these obligations.

At the request of a Client who considers it necessary, the Parties may formalize these commitments in a separate data processing agreement.

For any dispute arising from this contract, the Client and the Agency agree to seek an amicable settlement before taking any legal action.

In order to find a solution together to any dispute that may arise in the performance of this contract, the parties agree to meet within TEN (10) days of receipt of a registered letter with acknowledgment of receipt sent by either party.

This amicable settlement procedure is a mandatory prerequisite to bringing any legal action between the parties. Any legal action brought in breach of this clause would be declared inadmissible.

However, if after a period of THIRTY (30) days the Parties were unable to agree on a compromise or solution, the dispute would then be submitted to the jurisdiction designated below.

ANY DISPUTE RELATING TO THE CONCLUSION, INTERPRETATION, PERFORMANCE OR TERMINATION OF THIS CONTRACT SHALL BE SUBMITTED TO THE COMMERCIAL COURT OF CAYENNE, WHICH SHALL HAVE EXCLUSIVE JURISDICTION, INCLUDING IN SUMMARY PROCEEDINGS, NOTWITHSTANDING ANY THIRD-PARTY CLAIM OR MULTIPLE DEFENDANTS.

Where the Client is a legal entity governed by public law, disputes fall within the jurisdiction of the territorially competent Administrative Court, in accordance with the applicable rules of public law.

The Agency declares that it is insured for its professional liability with a company of recognized solvency for all material and non-material damage resulting from the performance of the Services by its staff or collaborators. This insurance covers in particular advertising consulting, marketing consulting, communication consulting, PR, social media and community management activities, including SMS campaigns, for an amount capped at 200,000 euros per claim and per insurance year.

The Agency undertakes to maintain this coverage for the entire term of this agreement and to provide proof of it at the other party’s request.

The Agency may subcontract all or part of the Services and will remain responsible to the Client for the services performed by its subcontractors.

At the end of the Contract or in the event of termination, for any reason whatsoever, the Agency undertakes to take all necessary measures to ensure the reversibility of the service, by enabling the Client to take over the services, or have them taken over by a third party, under the best possible conditions.

Reversibility operations consist in particular of the Agency returning all documents, information and materials made available to it by the Client for the performance of the Services. Proprietary source files, as well as the Agency’s Proprietary Tools and Processes, are excluded from this reversibility, in accordance with the Intellectual property article. Any assignment of them will be subject to a specific amendment in accordance with the terms set out in the Intellectual property article (Optional assignment of source files).

Depending on their complexity, these reversibility operations may be invoiced separately by the Agency. The specific reversibility terms may be set out in the Special Terms and Conditions or in a separate contract.

It is formally agreed that any tolerance or waiver by either party in the application of all or part of the commitments provided for in this contract, whatever its frequency and duration, shall not constitute a modification of this contract, nor give rise to any right whatsoever.

The annulment of one or more clauses of this agreement by a court decision, an arbitral award or mutual agreement between the Parties shall not affect its other provisions, which will continue to have full force and effect provided that the overall balance of the agreement can be preserved.

Should the performance of one or more clauses of this agreement become impossible as a result of its annulment, the Parties will endeavor to come together to draw up a new clause whose spirit and letter are as close as possible to the former clause, the other provisions of the agreement remaining in force.

Failing this, or if the overall balance of the agreement were fundamentally disrupted, the Parties could, by mutual agreement set out in writing, record the annulment of this agreement in its entirety.

The General Terms and Conditions are communicated either attached to quotes and invoices, or on simple request from the Client to the Agency.

Unless the Client explicitly states otherwise, notified by any written means, the Agency reserves the right to include in its work a commercial notice clearly indicating its contribution, such as the wording “Design and production: Bitwip”, accompanied, where the medium allows, by a hyperlink to the commercial website of its business.

Unless the Client explicitly states otherwise, notified by registered mail with acknowledgment of receipt, the Agency reserves the right to mention its work for the Client in its external communication and advertising materials (website, brochures, etc.), as well as in its business prospecting. This right extends, without any restriction, to all the constituent elements of the work.

If the Client so requests, the mention of its name may be accompanied by a hyperlink to its website.

The parties agree that information communicated in writing by one party to the other during the performance of the Contract is confidential as long as it is not in the public domain, even if the party that provided it did not specify the confidentiality requirement when communicating it.

Information communicated orally between the parties is confidential only if the communicating party asked the receiving party to respect its confidentiality and can prove that the latter agreed to this request.

The parties are bound by the confidentiality obligation for 2 years from the termination of the Contract.

If confidential information is disclosed by the party that received it, that party will be deemed to have breached confidentiality, unless it proves that the disclosure was required of it by a mandatory rule, or by a case of force majeure as defined in the “Force majeure” article herein.

The recipient of the disclosure may be deemed an accomplice of the party that disclosed the information if it had actual knowledge that the latter was thereby breaching its confidentiality obligation, and may therefore be held jointly and severally liable, with the defaulting party, for any loss suffered by either party. Whichever of them has paid the debt has recourse against the other in accordance with the applicable rules before the competent court.

The Client attaches particular importance to combating fraud, corruption, influence peddling, money laundering and terrorist financing. Any person or company dealing with the Client adheres to the same principles and scrupulously complies with the regulations in force.

Consequently, the Agency irrevocably undertakes to comply with the provisions of this article. Any breach by the Agency of the provisions of this article shall be considered a serious breach entitling the Client, if it sees fit, to terminate the Contract without notice or compensation, but without prejudice to any damages to which the Client may be entitled as a result of such a breach.

The Agency guarantees that any person, natural or legal, acting on its behalf under the Contract:

• Will comply with all applicable regulations on combating fraud, corruption, influence peddling, money laundering and terrorist financing, including the Sapin II Act of December 9, 2016;
• Will do nothing, by act or omission, that could make the Client liable for failure to comply with any applicable regulations on combating fraud, corruption, influence peddling, money laundering and terrorist financing;
• Will put in place and maintain its own policies and procedures on ethics and on combating fraud, corruption, influence peddling, money laundering and terrorist financing;
• Will inform the Client without delay of any event that comes to its attention and that could result in failure to comply with any applicable regulations on combating fraud, corruption, influence peddling, money laundering and terrorist financing;
• Will provide the Client with all necessary assistance in responding to a request from an authority duly empowered to combat fraud, corruption, influence peddling, money laundering and terrorist financing.

It is therefore expressly understood between the Parties that the Agency, both for itself and for its employees, agents, representatives or persons acting on its behalf, shall refrain, directly or indirectly, from carrying out, participating in or performing any act, step or attempt that may contravene the aforementioned texts and principles. The Client may decide to terminate the Contract if the Agency contravenes the principles set out and/or refuses to take the measures necessary to resolve the non-conformities brought to its attention. The Client may decide to terminate the Contract if the Agency contravenes the principles set out or the commitments made herein and/or refuses to take the measures necessary to resolve the non-conformities brought to its attention.

The Agency will indemnify the Client against any consequence, in particular financial, of a breach on its part of the obligations set out in this article. The Client hereby authorizes the Agency to take any reasonable measure aimed at monitoring the Agency’s strict compliance with the obligations set out in this article. The Agency undertakes to inform the Client, without delay, of any matter that comes to its attention and that could give rise to its liability under this article. It is understood that no obligation under the Contract may have the effect of requiring the Parties to breach their obligations relating to the fight against corruption.

By express agreement between the parties, this contract is governed by French law, to the exclusion of any other legislation.

It is drawn up in French. Should it be translated into one or more languages, only the French text shall prevail in the event of a dispute.

For the entire term of this contract and for a period of TWELVE (12) months following its expiry or termination, each Party undertakes not to solicit, hire or engage, directly or through an intermediary, any employee or subcontractor of the other Party, without the latter’s prior written authorization.

In the event of a breach, the defaulting Party will pay the other a fixed indemnity equal to twelve (12) times the gross monthly salary of said employee or, for a subcontractor, the average monthly amount invoiced, without prejudice to any other damages that may be due.