Significant imbalance: The French Cour de cassation provides useful insights for the assessment of the significant imbalance in view of the criterion of “good faith”, the previous acceptance of unbalanced clauses and reminds the necessity of proportionate counterparties to the such clauses (Document Concept 87-23 / Xerox)

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This article was first published in the Lettre de la distribution published by the Centre du Droit de l’Entreprise of the University of Montpellier.

Facts. Xerox (hereinafter "Xerox" or the "licensor") and Document Concept 87-23 one of its dealers (hereinafter "Concept" or the "dealer"), had been bound since 2007, by successive three-year renewable fixed-term dealer agreements. The last renewal was on April 25, 2014, effective November 30, 2013, so that the contract expired on November 30, 2016. The purpose of these contracts, which were subscribed to online via a simple "click" by the dealer (judgment, pt 10.), was to have the dealer offer maintenance contracts for Xerox equipment, entered into directly between the dealer and its user customers. The maintenance operations were subsequently subcontracted to Xerox, which billed the dealer for them. In 2015, Xerox failed to pay some of its invoices and, referring to the contractual

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  • Jean-Michel Vertut - Avocat (Montpellier)

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Jean-Michel Vertut, Significant imbalance: The French Cour de cassation provides useful insights for the assessment of the significant imbalance in view of the criterion of “good faith”, the previous acceptance of unbalanced clauses and reminds the necessity of proportionate counterparties to the such clauses (Document Concept 87-23 / Xerox), 6 April 2022, Concurrences N° 3-2022, Art. N° 107316

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