For an “OPEN SOURCE” of Law — Contribution # 1: Limit the size of our contracts
To simplify, clarify and balance our relations with third parties, we propose a contract consisting of a Letter of Mission backed by General Conditions in two pages
While the contracts between the various economic players have grown from year to year and have become “indigestible millefeuilles”, making the fortune of law firms and occupying generations of corporate lawyers, the acceleration of exchanges between economic actors requires adaptation of existing media.
Often, these large contracts are neither read nor respected, and are assimilated to contracts of membership imposed by large companies, gradually challenged in court for unfair and unbalanced clauses.
With TOLTEC, we have decided to offer our clients a contractual package consisting of General Conditions that apply to services and deliverables (the “Services”), carried out in accordance with a Letter of Engagement. The Letter of Engagement and the General Conditions form the contract binding the Parties (the “Contract”) which can only be modified by amendment.
The General Terms and Conditions are in two pages, and they refer in particular to the protection of personal data to the standards proposed on the website of the supervisory authority, the French Data Protection Authority CNIL and for the security of information to the good practices published by the French Iinformation Security Authority, ANSSI.
The proposed General Conditions have been simplified, clarified and balanced, so that the essentials are no longer supplanted by the accessory. The best is sometimes the enemy of good, by adding articles we can not secure the essential, namely, what do we want to do together and do we agree on the thing and the price ?
Often in our practice, we noted in the negotiation of the contracts that our contractors commissioned consultants for services with governors without really knowing what was really the object, the duration and the total amount of the mission. The use of a consultant is simpler than the recruitment of a collaborator, we say we’ll see how it goes and the inaccuracy of the mission gives the feeling of greater flexibility, but what can be a benefit if everything goes well, becomes a disadvantage if the service does not meet expectations.
However, let’s not be naive, it is difficult to frame everything to launch a collaboration, but it is essential to secure some “basic”, namely:
The identity of the counterparty.
This is the b.a.-ba of collaboration. Who is our counterpart? Is the signatory entitled to commit, because if he is not, it will be difficult to obtain the payment of the benefit? Have we verified the existence, solvency and reputation of the counterparty, including the “googlisant” to ensure that there is no negative public information detrimental to the reputation of the latter, which could come back to us in “boomerang”.
The identity of the counterparty must therefore be clearly indicated in the Letter of Mission and the capacity of its signatory must be verified.
It is necessary to limit in time the ability of the client to challenge the quality of Deliverables and determine who owns what.
With TOLTEC, we consider that:
- After a period of ten days after delivery and without reservation identifying precisely their non-compliance with the Contract, the Deliverables and Deliverables Projects must be deemed accepted.
- Each Party retains the intellectual property of the know-how and methodologies belonging to it before use in the Contract, as well as their improvements and additions.
- Unless otherwise stipulated in the Letter of Mission, TOLTEC grants to its Customer, once their payment is complete and subject to the rights of third parties, the non-exclusive and non-transferable rights to use the Deliverables, for its internal needs, to the exclusion any marketing right.
The respective roles and obligations
Let’s not go around the bush, without committing to an obligation of result, to be credible and establish a relationship of trust with your customers, you must at least commit yourself to an obligation of means and implement the necessary means to deliver quality services.
Commit yourself, by means of an obligation of means, to deploy and exercise professional skills, efforts and reasonable care in the execution of the Services. For this purpose, your obligation is based on the information, documents and personal data provided by the Customer.
Unless otherwise agreed in writing by the Parties, the Services must be provided according to your understanding of the laws, regulations, French professional standards and practices of the administrative authorities applicable to them in France on the day of their execution. They are therefore not intended to take into account any other foreign or international rule or practice such as, for example, state aid, or to anticipate any change that may affect the Services in the future. . Any other warranty, whether explicit or implicit, such as guarantee of hidden defects, peaceful and continuous enjoyment or suitability to the needs and objectives of the Customer must be excluded.
In any case, except gross negligence or fraud on your part, the total amount of damages to which you could be sentenced, all causes and damages combined, is generally limited to the amount of fees received by your company.
Ethics, respect and compliance
Ethics, respect and compliance are rooted in the values of TOLTEC, we are convinced that they are the “sine qua non” condition of sustainable valorization, and we invite you to anchor them in your values too.
TOLTEC is very attentive to the respect of the rights of all and is labeled “Respect Zone.org” and is committed to the respect of the charter accessible by clicking on the link www.respectzone.org.
In addition, we invite you to be attentive to your clients’ compliance with procedures for accepting and monitoring their counterparties, particularly in the areas of ethics, anti-money laundering, anti-corruption and anti-terrorism (the “Compliance Procedures”). To this end, the Client is required i) to be vigilant in the prior documented identification of its economic beneficiaries and managers, ii) to ensure that its activities, products and services, as well as those of the Client Entities, are not directly or indirectly prohibited or restricted by virtue of a mandatory rule, (iii) to ensure that it complies with its obligations, including those of a legal, fiscal or regulatory nature, in all the countries in which it operates; and (iv) inform you immediately of any changes therein as well as any facts or events to be brought to your attention as such.
The Parties must undertake to use only employees regularly employed in accordance with the rules laid down in each country and by the International Labor Office.
The Parties must undertake to respect the provisions of the International Labor Conventions (ILO — ILO) and more particularly those relating to child labor.
Fees and payments
The estimated fees must be defined in the Engagement Letter and be subordinated to the prerequisites and assumptions described in the latter.
Any other special or additional request not foreseen must be agreed between the Parties, be the subject of a separate writing and give rise to an additional billing.
Avoid hiring and starting benefits, which you want to charge, if you do not have an agreement on the price, because you will then lose valuable time to discuss the payment of your bills.
Be sure to build your relationship on good faith, avoid misunderstandings and misinterpretations. To rely on the decision of a court in case of litigation is to engage in a dispute of several years to the random result.
Beginning and end of the Contract
The Contract begins on the date and for the duration specified in the Engagement Letter.
We recommend that each of the Parties may terminate the Contract by operation of law, if it is concluded for an indefinite period, by giving 30 days’ written notice by delivering a letter in person or by hand. sending a registered letter with acknowledgment of receipt.
In the event of a serious breach by one of the Parties to any of its obligations, which has not been repaired within thirty days of the notification of the breach (s) in question, the other Party may terminate ipso jure Contract.
In all cases of termination, the Customer must agree to pay the fees related to the Services in proportion to their progress as well as the costs incurred by your company on the effective date of the termination, to which will add, unless terminated for exclusive fault on your part, any reasonable costs related to the anticipated termination of the Contract.
Even if the agreement on the “thing” is not clear, we recommend not to commit “ad vitam aeternam” and avoid entering into a mechanism with a long-term contract that although it may appear satisfactory in terms of turnover, it can create a situation of economic dependence which it will be difficult to discard, and the abuse of which may lead to a break and cause your cessation of activity.
By advocating more flexibility in commercial relations and proposing in the adapted General Conditions, we are convinced that a relationship that is not built on trust and the provision of services corresponding to the needs of the Customer must not be perpetuated.
Applicable law and competent courts
This is one of the most important points, not depending on a regulation that you do not control.
The Contract as well as any non-contractual obligation relating thereto shall be exclusively governed by, and construed in accordance with your national law or a right that you know or know, whatever the rules relating to a conflict of laws.
Any dispute, controversy or claim arising out of or in connection with the Contract or its performance, non-performance, termination or invalidity, which can not be resolved amicably, shall be the sole responsibility of the courts of the jurisdiction of your head office.
To the question, private justice (arbitration) or public justice (civil courts), our recommendation for small and medium-sized enterprises is that of less costly public justice than private justice, even if it has the advantage of allowing certain confidentiality, makes a quick decision more difficult and especially makes it more expensive.
Two complementary recommendations
The Customer must authorize you to present his name and logo among your commercial references.
You must be able to freely assign or transfer the contract, in whole or in part to any other entity controlled directly or indirectly by the associate (s) of your company. The Customer must consent in advance to such assignments or transfers and undertake to provide you with any reiteration of his agreement without delay if you request it.