General Terms and Conditions of Sale

Preamble

The company Informatique Associés Afrique (IAA) sells computer hardware and software packages (as distributor or publisher) as well as services of IT maintenance, managed services, training, implementation and integration, server hosting (web, email, …) or application hosting, and the supply of applications hosted in ASP or SaaS mode.

These Terms of Sale are governed by the document below, the provisions of the Uniform Act on General Commercial Law (AUDCG), the Uniform Act on Security Interests (AUSUR), and those of the revised Bangui Agreement and related texts governing intellectual property rights.

I — Scope and definitions

I.1 — Definitions

Whenever they are used in the body of these General Terms, the expressions below shall have the following meaning:

• Provider means the company Informatique Associés Afrique (IAA);
• Client means the entity that subscribes to the offer proposed by the Provider;
• Products means the computer hardware and supplies, and/or the software packages ordered by the Client;
• Services means the services ordered by the Client, in particular IT maintenance, managed services, training, implementation and integration, server or application hosting, and the supply of an application hosted in ASP or SaaS mode;
• Offer means the commercial proposal setting out the specific terms and conditions of the Provider's offer: the Products and/or Services subscribed for (with, where applicable, descriptive schedules of the Services — scope, exclusions, prerequisites, description, …), the price, the term of the contract, where applicable the time limits and place of delivery/installation, … and the period of validity of the offer;
• Order means subscription to an offer proposed by the Provider;
• Terms of Sale means this document, which governs the commercial relations between the Provider and the Client;
• Special Conditions means the documents setting out the terms and conditions specific to certain categories of Products and Services; they supplement the provisions of the Terms of Sale;
• Party(ies) means the Provider and the Client, individually or together.

I.2 — Scope

These Terms of Sale apply to all sales of Products and Services concluded by the Provider.

They apply regardless of any clauses that may appear on the Client's documents, and in particular its general terms of purchase, over which these Terms of Sale prevail.

The terms and conditions specific to each offer of the Provider are described in the corresponding Offer and, where applicable, the Special Conditions applicable to the Products and/or Services in question.

The contractual documents are, in order of precedence: the Offer, the Special Conditions and the Terms of Sale. In the event of contradiction between them, the contractual documents prevail over one another in the order indicated above.

They cancel and replace any contractual document previously signed between the parties having the same subject matter and in the course of performance.

Any Order implies the Client's unreserved acceptance of, and full adherence to, the Terms of Sale and, where applicable, the Special Conditions relating to the Products and/or Services ordered.

No departure may be made from the Terms of Sale and the Special Conditions, or from the terms of the Offer, except by a writing issued by the Provider.

The Terms of Sale are provided to any entity that so requests, so that it may place an order, and are available on the Provider's website. The Special Conditions are considered case by case in consultation with the Client.

Any document other than the Terms of Sale, the Special Conditions or the Offer, in particular any catalogue, prospectus or advertisement issued by the Provider, has indicative and informative value only, and is therefore not contractual.

The Provider reserves the right to amend all or part of the provisions of its Terms of Sale or Special Conditions.

In the case of periodic Services (managed services, web hosting, email, data, management of domain name(s), maintenance, …), any amendment of the Terms of Sale shall be notified on or with the invoice. Unless the Client indicates otherwise within 8 days of the date of receipt, the new Terms of Sale shall become binding on the Client.

II — Orders

II.1 — Drawing up the offer

Following a request from the Client, the Provider draws up an Offer. Written acceptance of that Offer by the Client before the expiry of its period of validity constitutes an Order.

The Client declares that it has obtained from the Provider all information necessary as to the Products and Services offered, their characteristics, their performance and their technical limits. It declares that the Products and/or Services ordered correspond to its needs.

II.2 — Irrevocability

Any Order is irrevocable, except for a modification or cancellation accepted in writing by the Provider.

If a cancellation is accepted by the Provider, the deposit paid on the Order shall by operation of law vest in the Provider and shall not give rise to any refund, without prejudice to any damages due in compensation for the loss suffered by the Provider.

II.3 — Unpaid amounts

If, on a previous Order, the Client has wholly or partly avoided its obligation to pay the full agreed price together with any penalties issued, the Provider may legitimately refuse to submit an Offer to it or to validate any new Order unless that Client provides guarantees deemed sufficient by the Provider.

III — Term of the services contract

The initial term of the contract is, unless specific provisions apply, 12 months. It runs from the date specified in the applicable Special Conditions or the Offer.

At the end of that term, the contract is renewed by tacit renewal for periods of 12 months unless terminated by either Party, by registered letter with acknowledgement of receipt or by letter delivered by hand, 2 months before the end of the current period.

In the event of termination before the agreed end date, on the initiative or by the fault of the Client, whatever the cause (except a proven breach by the Provider of its contractual obligations), the Client is automatically and immediately liable for all sums not yet due that are owed up to the contractually agreed end date.

IV — Prices and terms of payment

IV.1 — Prices

Unless specific provisions apply, the Products and Services are supplied at the prices in force on the day of delivery. The prices stated by the Provider in its Offer are therefore liable to revision, in particular in the event of a change in its suppliers' prices. If the price excluding tax increases by 10% or more compared with the price stated in the Offer, the Client may cancel the Order, but only in its entirety, without compensation or damages for either party.

Prices are net, exclusive of tax, and exclusive of costs of delivery, handling, installation and, where applicable, travel of the Provider's personnel. The applicable VAT is that in force on the day of the chargeable event for the tax. The Provider is entitled to change its prices at any time, without prior notice, and without incurring liability as a result.

For Services, the Provider reserves the right to revise the price provided that it informs the Client at least one month in advance by registered letter or by letter delivered by hand.

If the Client does not reply within 15 days of receipt, it is agreed that the price is accepted by the Client and becomes irrevocable.

For hosting Services, it is agreed that the price shall be revised by operation of law upon fluctuations in foreign currencies against the FCFA. The reference currency is then that stated in the Offer.

IV.2 — Terms of payment

The price is, unless specific provisions apply, payable as to 50% on order and 50% on delivery. Depending on the volume of purchases made from the Provider, a credit facility may be established.

The Order is recorded by the Provider only after payment of the initial deposit, and the balance of the price is payable in cash on the day the Products are supplied.

Where a Client benefits from a payment facility, a financial discount of 2% shall be applied in the event of early payment made no later than 3 days after delivery of the goods.

Any complaint concerning the items on an invoice must be brought to the Provider's attention within a maximum of 15 calendar days from its receipt. After that period, no complaint is admissible, except for a manifest error of addition. Only the actual collection of the means of payment, and not their mere remittance, is regarded as constituting payment within the meaning of the Terms of Sale.

Any delay in payment on the agreed due date shall render payable by operation of law late-payment interest of 2.5% per month on the amount of the sums including tax that are due, together with an indemnity of 50,000 CFA excluding tax (XOF) by way of penalty clause. Late-payment interest runs from the due date until full payment of the price remaining to be paid. The indemnity is due in full for each invoice issued (even if partly paid) whose payment has fallen due.

Invoicing these penalties in no way removes the Provider's right to bring a recovery action against the Client.

In the event of failure to comply with the payment terms set out above, the Provider further reserves the right to suspend performance of its obligations under the contract in question and under any other contract relating to related or ancillary Services, and to cancel any discounts granted to the Client.

Recovery costs (by bailiff or through the courts) shall be borne by the Client.

IV.3 — Training services

Orders for training Services are accepted by the Provider only if they are accompanied by payment of the full price. A receipted invoice is then sent to the payer upon receipt.

Any cancellation or request to postpone must reach the Provider in writing at least 10 working days before the start of the training. Failing that, the price paid by the Client shall remain vested in the Provider as a fixed indemnity, without prejudice to any other action it would be entitled to bring against the Client.

The Client may replace the participant initially enrolled on a training course with another participant belonging to its company.

The Provider reserves the right to cancel or postpone a training course if the number of participants is insufficient. It informs the Client as soon as possible.

V — Terms of supply of the products

V.1 — Supply time limits

Supply time limits are, where applicable, stated in the applicable Special Conditions or in the Offer; they are given as an indication and without any guarantee. Those time limits depend in particular on the availability of the Products from the Provider's suppliers. The Client authorises the Provider to make partial deliveries.

Any delays cannot give rise to damages, indemnities, penalties or deductions, whether direct or indirect. In any event, supply within the time limits can take place only if the Client is up to date with its obligations towards the Provider.

The Products and Services are supplied at the place stated in the Offer.

V.2 — Modification of product characteristics

The Provider reserves the right to modify at any time the characteristics of the Products ordered and the Services supplied, without such modifications being capable of being regarded as substantial modifications.

V.3 — Handling of client calls

The Provider receives Clients' calls during the following service period: Monday to Friday, from 8:30 a.m. to 1:00 p.m. and from 2:30 p.m. to 6:00 p.m., excluding public holidays.

On-site training days and Service days have a maximum duration of 8 hours, between 8:30 a.m. and 6:00 p.m. Except in particular cases, any hour begun is payable.

V.4 — Subcontractor

It is expressly agreed between the parties that the Services may be subcontracted by the Provider to a company whether or not belonging to the Provider's Group.

V.5 — Acceptance

On delivery, the Client or its representative is required to check that the Products and Services supplied conform to the order in quantity and quality.

In the event of an error in quantity, damage or spoilage, the Client must expressly state reservations or complaints in the delivery receipt or in any equivalent document of the carrier.

It must then confirm those reservations or complaints by registered letter with acknowledgement of receipt, or by letter delivered by hand to the Provider, within a maximum of five working days from delivery, failing which they shall be inadmissible.

Failing that, the Products are deemed free of apparent defect, and the Provider is released from all liability concerning those products.

If the non-conformity or apparent defect is acknowledged, the Provider's liability shall be limited, at its choice, to:

• either correction of the non-conformity or of the defect;
• or replacement of the Product;
• or refund of the order, to the exclusion of any indemnity or damages.

Partial defectiveness of a delivery cannot justify its total rejection.

No Product shall be taken back or exchanged without the Provider's prior written agreement, and compliance with the return procedure provided for in the special conditions.

V.6 — Warranty

The Provider warrants to the Client the proper performance of the Services ordered and undertakes to apply the necessary care and diligence. It is bound by an obligation of means.

The Provider does not warrant the fitness of the Products and/or Services to meet specific needs or objectives of the Client that have not been made contractual.

Exclusions from warranty — In any event, excluded from any warranty that may apply, and therefore chargeable to the Client at the price in force, are the Services and repairs made necessary by:

• normal wear;
• failure to comply with the prescriptions of the manufacturer and/or of the Provider;
• damage attributable to products sold by third parties, to non-conforming connections, to supplies that have not been approved, to modifications of the Products, to an accident, or to an overload even if temporary;
• abnormal or non-conforming use, negligence, deliberate destruction, or failure to comply with the instructions for use and maintenance, attributable to the Client;
• intervention by a third party not authorised by the Provider to repair a Product;
• a defective electrical, climatic, atmospheric or other environment.

It is recalled that the foregoing provisions are stipulated without prejudice to the legal warranty, which applies in any event unless a specific warranty period is stated in the Offer.

VI — Transfer of ownership and risk

In accordance with the provisions of the AUSUR, the Provider retains ownership of the Products until full payment of the price and of all related accessories, in particular any late-payment interest that may be due. The Provider may publish the retention of title in the Trade and Personal Property Credit Register, in accordance with the provisions of the AUSUR.

Any deposit paid by the Client shall in all circumstances remain vested in the Provider as a fixed indemnity, without prejudice to any other action it would be entitled to bring on that account against the Client.

By contrast, the transfer of the risks of loss and of deterioration of the Products shall take place upon their delivery by the Provider.

VII — Obligations of the Client

The Client undertakes to cooperate with the Provider in order to provide it, as soon as possible, with all means and information necessary for the implementation of the Products and/or the performance of the Services ordered.

In addition, upon acceptance of the Offer, it shall designate from among its staff one or two preferred points of contact for the Provider for each type of Services ordered.

The Client shall ensure that the site of installation of the Products and their environment conform to the instructions and technical notices provided by the Provider, so as not to impair the operation of the Products.

It undertakes to read and to comply with the instructions for use and/or maintenance of the Products (technical notice), supplied by manufacturers and publishers or accessible on their website.

If the Products are serviced or maintained by a third party, the Provider's liability cannot be engaged and the Client alone shall be liable for all harmful consequences.

A Client that is not under contract undertakes to carry out, under its sole responsibility, updates of anti-virus software, protection of its internal network by an intrusion-prevention firewall, backups of all its programs, files and data on a regular basis and in particular before each intervention by the Provider, as well as checking the proper operation of uninterruptible power supplies, and checking routers and modems so that they do not connect unexpectedly.

In no event can the Provider be held liable for the destruction or deterioration of files, data or programs.

At the Client's express request and with the Provider's acceptance, the Provider may carry out commissioning of the Products ordered. Those services are invoiced at the price in force on the date of the order. In that regard, the Client declares that it has been informed of the need to make a full backup of its operating systems (data, databases, programs…) before any service by the Provider. It undertakes to do so, under its sole responsibility.

Accordingly, the Client acknowledges that it remains solely responsible for the integrity and backup of its programs and data files, in quality and in number of copies.

The Client undertakes to comply strictly with the laws and regulations in force in matters of import and export.

Personal data — The Client remains responsible for any processing of personal data carried out within its company and undertakes to take all necessary administrative and legal measures.

VIII — Insurance

The Provider holds an insurance policy covering its professional civil liability for all obligations placed upon it. It undertakes to provide evidence of this on the Client's request, by supplying a certificate from its insurers listing the cover taken out, its amount and its period of validity.

IX — Liability and limitations

IX.1 — Seconded personnel

The Provider's personnel seconded to the Client remain under the responsibility of the Provider, which alone directs and supervises the performance of that personnel's tasks, subjects them to its sole authority, and is alone entitled to give them directions and instructions.

IX.2 — Non-performance of obligations

In the event of non-performance by the Provider of any of the obligations incumbent upon it (under the contract or under legal provisions), the parties expressly agree:

• that the Provider's liability would be limited to direct material damage and that all non-material damage is expressly excluded from any compensation, for example and without this list being exhaustive: loss of profits, of turnover, of margins, of revenue, loss of orders, of clients, of business, loss of data, of files, of evidence, or harm to brand image or claims by third parties;
• that the Client must bring proceedings before the competent courts within one year of the non-performance, failing which the claim shall be time-barred;
• and, in all circumstances, that the loss resulting from that non-performance for the Client may never be compensated beyond a maximum sum (cap on compensation) corresponding to the price received by the Provider in respect of the Products in question or to the annual amount paid by the Client for the Services concerned.

The provisions of this clause shall continue to apply even in the event of rescission or termination of these terms established by a court decision that has become final.

X — Intellectual property

X.1 — Intellectual property

The Client undertakes to respect all intellectual property rights, know-how, manufacturing processes and trade secrets of the Provider, in particular as regards trademarks, designs and models, and, generally, all other rights held by the Provider and recognised by OAPI.

It is expressly acknowledged by the Client that it holds no intellectual property right relating to the Products. The Client may not in any event and for any reason whatsoever modify the intellectual property rights or the trademarks relating to the Products, nor apply for or obtain any legal protection for any element of any nature whatsoever in connection with the Products.

The Client shall not act in a manner that would be liable to infringe all of the Provider's intellectual property rights, or those of any other entity, described above. Insofar as certain Products and/or elements contain or constitute information protected by the Provider, in particular as trade secrets, the Client may not assign, transfer, entrust, make available or sell them to third parties without the Provider's express agreement.

The Client undertakes to inform the Provider of any action or claim by third parties concerning the intellectual property rights relating to the Products and of any infringement by third parties of the intellectual property rights relating to the Products, and to assist in legal proceedings that may be brought against the authors of or accomplices to those infringements.

X.2 — Referencing

The Client authorises the Provider to use its name, its corporate name and its logo to refer to their commercial relationship in the presentation of its activities, on its commercial documents and on its websites.

XI — Confidentiality

Each Party shall not disclose to anyone, directly or indirectly, all or part of the confidential information of any nature, commercial, industrial, technical, financial, …, that has been communicated to it by the other Party, or of which it has become aware in the course of performance of the Order or of the Contract.

Information that, in the absence of fault by either party, is in the public domain is not confidential information.

XII — Non-solicitation of staff

During the term of the contract (sale of Products and/or Services), and for the twelve months following its expiry or termination, for any cause whatsoever, the Client shall not (except with the Provider's prior express written agreement) cause any member of the Provider's personnel who took part in performance of the contract to work, directly or indirectly.

In the event of breach of this prohibition, the Client shall be required to pay immediately to the Provider, by way of penalty clause, a fixed indemnity equal to 12 times the last gross monthly salary of the person solicited or hired, plus all costs of recruiting a replacement.

XIII — Suspension of obligations

In addition to the events usually accepted by Senegalese case law as force majeure, the Provider's obligations shall be automatically suspended in the event of circumstances independent of its express will that prevent normal performance of the contract, namely in particular: wars, riots, strikes, interruption of water and/or electricity supply, blockage or failure of the telecommunications system, blockage of external computer networks including the networks of telecommunications operators, computer viruses, unavailability of products from suppliers / manufacturers, this list not being exhaustive.

The Party noting the event shall inform the other Party without delay. Suspension of the Provider's obligations may in no event be a ground of liability for non-performance of the obligation in question, nor give rise to the payment of damages or delay penalties for the benefit of the Client.

However, as soon as the cause of the suspension of their reciprocal obligations has disappeared, the parties shall use their best efforts to resume normal performance of their contractual obligations as soon as possible.

XIV — Early termination

In the event of breach by the Client of any of the clauses of the Terms of Sale, of the Special Conditions and/or of the Offer, and in particular in the event of failure to pay all or part of the price in accordance with the terms provided or of failure to comply with the obligations placed upon it, the Provider reserves the right to terminate, without notice or compensation, the Order or the contract in progress.

Termination shall then occur by operation of law one month after the sending of a formal notice that has remained wholly or partly unsuccessful.

XV — Transfer

The Client irrevocably acknowledges the Provider's right to transfer or assign all or part of its rights and obligations to any third party of its choice.

XVI — General provisions

The fact that the Provider does not rely, at a given time, on any of the clauses of these terms or of the Special Conditions cannot constitute a waiver of the right to rely on them subsequently.

The Client acts in its own name and on its own account as an independent contractor. It has neither the power nor the authority to bind the Provider in any way whatsoever. No provision of the Contract may be interpreted as creating, between the Client and the Provider, a mandate, a partnership, or a relationship of agent or of employee to employer.

XVII — Disputes and applicable law

The Provider elects domicile at its registered office.

All clauses appearing in these Terms of Sale, and all purchase and sale transactions referred to in them, are subject to OHADA law, to the exclusion of the Vienna Convention on the International Sale of Goods and of any other law.

If the Client is sued by third parties before another court, it hereby waives the right to call the Provider in warranty before that other court.

Any dispute arising out of these Terms of Sale or in connection with them shall be finally settled in accordance with the provisions of Title IV of the Treaty on the Harmonisation of Business Law in Africa of 17 October 2008 and the Arbitration Rules of the OHADA Common Court of Justice and Arbitration of 23 November 2017 by a sole arbitrator appointed in accordance with those texts.

The Parties agree to waive any action to set aside the arbitral award. That award, having the authority of res judicata, shall be binding on the Parties and immediately enforceable.

The arbitration shall take place in Dakar (Senegal) in the French language. The arbitrator shall have the power of amiable compositeur. Only on a subsidiary basis shall the arbitrator have recourse to the law.

Updated on 24/05/2022.

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